WINTER 2018 • VOL. 44, NO. 4 VERMONT BAR JOURNAL DEPARTMENTS
5 PRESIDENT’S COLUMN — It Matters
6 PURSUITS OF HAPPINESS — Renaissance Rebecca: An Interview with Rebecca Rice
14 RUMINATIONS — Disrespecting the Vermont Constitution
20 WHAT’S NEW — Wellness Commission
22 WRITE ON — A Good Rebuttal is Like Obscenity Photo: Tami Baldwin, VBA 35 BOOK REVIEW
36 IN MEMORIAM
38 CLASSIFIEDS
FEATURES 25 Women in the Judiciary Event Jennifer Emens-Butler, Esq.
27 Spotlight on Grantee: Association of Africans Living in Vermont, Inc. Jesse D. Bugbee, Esq.
30 Jill Rudge: 2018-2020 Poverty Law Fellow
32 Casemaker4: New and Improved, Yet Reassuringly Familiar Norman Woolworth
33 Yes, Sometimes a Referral Can Come Back to Haunt You Mark Bassingthwaighte, Esq.
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4 THE VERMONT BAR JOURNAL • WINTER 2018 www.vtbar.org by Gary L Franklin, Esq. PRESIDENT’S COLUMN It Matters
So, recently I was preparing a client for the child of ignorance but should be the a deposition. In covering his background, product of enlightened choices. he shared with me his military experience As lawyers, we play an important role while serving in Vietnam. As an infantry sol- in guarding the rule of law. To become li- dier he saw substantial combat. What re- censed, we are required to literally swear to ally struck me though was his experience of uphold the Constitution. Shakespeare un- walking through villages as part of a heavily derstood this well when his character Dick armed platoon where, in that moment, he the Butcher in a scene from Henry VI pro- and his comrades shared absolute power. claimed “first, kill the lawyers” in order to The rule of law did not exist. In contrast, he eliminate law and order so his rebel leader told me that a deposition, while part of an Jack Cade could ascend to the throne. unfamiliar and cumbersome legal process, Combating ignorance of the rule of law “shouldn’t be a problem.” is the best way to preserve it. That is why Churchill’s famous remark about a de- we are doubling down on our education- mocracy being the worst form of govern- al efforts at the Vermont Bar Association. ment except all others that have been Each year we hold Legislators’ Days with tried, immediately came to mind. While the judiciary in each county. Local legisla- we gripe about increasingly ineffective tors are invited to meet with judicial offi- government and protracted litigation, of- cers and witness proceedings in their coun- ten with good reason, we have to keep it ty courts. These have proven to be a high- in perspective. Living in a society that sub- ly valuable tool in educating the legislature scribes to the rule of law with due process about the importance of the judiciary and and an independent judiciary, as imperfect what is required to ensure that it remains legal system from the local bar, local leg- as it is, is indispensable to our way of life. a robust functioning branch of government islators, other stakeholders in the judicial Even more fundamental to the preserva- serving their constituents. Additionally, the system and any members of the gener- tion of our constitutional rights is the right VBA promotes Constitution Day on an an- al public who participate. The Chief and I to a trial by jury which provides protec- nual basis where lawyers and judges dis- agree that it’s very important for people to tion against arbitrary action from a corrupt tribute pocket constitutions and present be heard and to feel vested in our demo- prosecutor or biased judge. Compare our at schools and civic groups throughout the cratic institutions. forms of dispute resolution with earlier and state regarding aspects of the Constitu- An educated citizenry, whether liber- more primitive forms such as trial by battle tion. This year we also organized the third al or conservative, that understands civics --exactly as it sounds -- or trial by ordeal annual Constitution Day Panel hosted at and the importance of a strong and inde- where, for example, a defendant would be the Vermont Law School. The VBA also co- pendent judiciary, is far more likely to trust adjudged innocent only if they sank when hosted the Centennial Celebration of the our courts and democratic institutions. immersed in water. Yes, you risked drown- Vermont Supreme Court Building celebrat- Through robust civic engagement we can ing to prove your innocence. So, while our ing the role of lawyers and judges in pre- promote the “commerce of ideas” and more modern form of litigation deserves its serving the rule of law. stem the tide of ideological warfare. As fair share of complaints, we need to judge Currently, Chief Justice Paul Reiber and lawyers, we are uniquely suited to this task. it on the scale of human experience. I are engaged in a listening tour, visiting Yes, what we do really matters. Unfortunately, we are facing significant each county within the State to gain a bet- challenges to the rule of law. More and ter understanding of perspectives on the more, our population has become siloed with factions living in their own echo cham- ber suppressing the healthy exchange of ideas. People are conditioned to reject speech that they disagree with. It’s no co- incidence that public trust in government is declining, voter participation is low, and few Americans can even name all three branches of government. This toxic com- bination has led to increased political po- larization where major domestic achieve- ments – think Obamacare and Trump’s tax cuts – are passed without a single vote from the minority party. Gridlock is re- placed by executive order and the left and the right play almost entirely to their base. A healthy democracy, however, cannot be www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2018 5 PURSUITS OF HAPPINESS Renaissance Rebecca: An Interview with Rebecca Rice
Jennifer Emens-Butler: I am at the of- fice of Cohen & Rice in Rutland -to inter view Rebecca Rice for our Pursuits of Hap- piness column. So Rebecca, as you know, I have a regular column where I interview lawyers with interests and passions outside of the practice of law. I have had interviews with people who have musical talents, ex- cel at competitive sports, have passion for the outdoors or passion for volunteer work. And for you, it’s all of the above, correct?! Rebecca Rice: Correct!
JEB: Yet, you have a very busy practice as well, so we want to get to a little bit of information about your busy life and as many of your pursuits that I can cover, ok? RR: Yes, ok.
JEB: So, what is the nature of your prac- tice, just so our readers know a little bit about you. RR: Right now, it is solely bankruptcy.
JEB: Soley bankruptcy. You used to do other things? RR: I used to evict tenants.
JEB: You wore the black hat [laughs]? RR: [laughs] Yes, I used to wear a black hat. I used to do foreclosures even, and Ok. by phone, because they don’t have a com- now I only do white hat work. JEB: RR: But on the cold days or the nasty puter. days, I will come into the office. JEB: White hat…it’s mostly Chapter 13’s It is good that you don’t find that for debtors, right? JEB: JEB: It’s warmer here? it adds any stress--not being able to be in RR: A good chunk it, at least half of my It’s warmer here. contact—because while there are urgen- bankruptcy practice is Chapter 13. RR: cies, perhaps there aren’t emergencies. JEB: I was wondering how you find As Judge Conrad said, there are no real JEB: And the 13’s are the ones that can hours in the day for your pursuits of hap- emergencies in bankruptcy, because it’s last a long time, 3 to 5 years or longer? piness when you have over 200 cases, but only money, with the only exception being RR: Or longer. you do find the time? cows. RR: Yes, on the weekends, I do not RR: Yes! JEB: Or longer, right! Do you have an check email, and my cell phone is usually estimate of how many open cases you have turned off. Your cows needing to be milked is at any given time? I know when I was prac- JEB: the only emergency there is. ticing I used to tell people numbers close That is incredible. People have a Don’t talk to me about cows…my to 100 and they thought that was ridicu- JEB: RR: hard time doing that, even though it is rec- problem with cows right now is basically, lous, but it is probably true, right? ommended for mental health reasons. But that I am the only one doing chapter 12 RR: Yes, it’s true. I have at least 200 open yet you have a couple hundred balls in the [farm cases]. cases right now. air at once. Do you set that expectation ahead of time? You just tell them you don’t JEB: So, you have all the cows. JEB: 200! Wow. And you have a staff to answer on the weekends… I have all the cows and right now, help you with all these cases? RR: RR: Right, my clients know that I don’t with the milk prices where they are now, I RR: Yes. check my emails on the weekend, and a lot am getting calls out the wazoo. of my clients don’t do much by email. JEB: So your practice is definitely full Right. And those are true emer- time. Do you work weekends? JEB: JEB: They walk in, they still do every- gencies, if somebody walks and the cows RR: I try not to, but I frequently end up thing on paper, old school? don’t get milked, they will die. working on the weekends, sometimes from Yes, and do their credit counseling Fortunately, most of these are com- home. RR: RR:
6 THE VERMONT BAR JOURNAL • WINTER 2018 www.vtbar.org
ing in before they are quite so desperate, RR: Currently, I have 9 horses, 7 of which but then there is always the question of are mine and 2 boarders, and 2 dogs and how we get the $100,000 of money that a cat. we need in this spring to plant. JEB: That’s a lot of hairy legs! So we’ve JEB: And those are some of the hard- hit passion #1, the farming outdoor life,
Pursuits of Happiness est cases, and I would say that adds to the right? stress. RR: Yes. RR: Yes, the 12’s are stressing me out right now. JEB: But the reason why you have 7 horses of your own is that you have a sport- JEB: It’s called compassion fatigue. ing interest in the horses too, correct? Judges get compassion fatigue, because RR: Yes, that’s right. I used to compete you just hear story after sad story about in combine training eventing. It used to these dairy farms and it must be a little bit be known as three-day eventing, which is depressing. dressage, cross country jumping and stadi- RR: I realized that there is only so much um jumping. I can do, there are only so many hours in a day, and I cannot solve everybody’s prob- JEB: So, you used to do all three? lems. RR: Yes, I used to do all of it, and since I have now had 2 hip replacements, I am do- JEB: That sounds like a good motto. But ing much less jumping and focusing more you do a pretty good job in solving most of on dressage. them, it sounds like. RR: I try. JEB: So, jumping is hard on the horse and on the individual who is sitting on the JEB: Now, you have a busy home life jumping horse! and I have fallen for this before, where you RR: Well I don’t think it was the jump- say “I would like to show you a picture of ing that did the hips in, I think it’s called my kids” like anybody else does, and then being 62. I see they are quite hairy, these kids, that you have shown me. JEB: Right. RR: And they all have 4 legs! RR: And not wanting to come off as much as I used to. As my husband said JEB: Yes, they all have 4 legs! So, how when I was 38 and starting a horse that many ‘kids’ do you have? promptly bucked me off: ‘don’t forget, you RR: Well, those kids, the goats, I current- are not as young as you used to be. You ly have 14. don’t bounce as well.’ I try to keep 4 on the floor. JEB: 14 goats! All 14 very cute kids. Some would say cuter than other people’s JEB: 4 on the floor, even though the kids, right? They are cute, they are loyal, horse has all 4 in the air, right. So, which they are a little bit crazy. was your favorite? RR: Troublemakers. RR: Well, stadium is jumping as well but cross country is going out and galloping JEB: Now, do you do farm chores in the and jumping over solid things that don’t morning yourself before you come in to move. I was never as super gung ho about work? cross country as some people were, I mean RR: Yes, I do. I loved it, and that is kind of why you event, for the cross country, but what I loved best JEB: Every morning? about the sport was the number of hours RR: Every morning, unless I must be in that I spent conditioning my horses be- Burlington at 9:00, and then I have a 10- cause horses have to be really fit to event. year old neighbor who is now my barn So, it was more just the number of hours manager-in-training and she and her father that I would be out conditioning. come over and she does the chores. JEB: You just loved to ride. JEB: That’s impressive. I don’t think I RR: I just loved to ride. could get my own kid to do that many farm chores in the morning. JEB: And did you always ride when you RR: Fortunately, she is home schooled, were a kid? so it makes life easier for her. RR: I was hooked at the age of 5.
JEB: That is a lucky thing to have when JEB: So, were you one of those kids that you are trying to get out in the morning. was like “oh can I please have a horse?” What other kind of animals do you have on RR: Oh, yes, my parents did not have the farm? horses.
8 THE VERMONT BAR JOURNAL • WINTER 2018 www.vtbar.org
JEB: Oh, so how did you fall in love with Vicar is 16 and Sophie, Found My Guard horses if they weren’t at home? is 17. I have got a 17-year-old half Conne- RR: When I was 5 my parents went to Eu- mara pony that I bred and watched being rope and shipped me and my sister down born and is still with us. to North Carolina for the summer and my Aunt down there had horses. JEB: Of Irish descendent?
Pursuits of Happiness RR: Yes. I have got a Kerry, who is the JEB: Oh. main mare that I ride, who I bought when RR: My grandmother hired a mother’s she was not quite 2 and she is now 16 and helper who was a rider and rented a pony one of the reasons I bought her is because for us for the summer, so if they couldn’t her mother’s full brother went to the Olym- find me, they knew I was in the barn. Holy pics on the eventing team in 2004. He was Hanna and I were very good friends. She a Canadian Sport horse named Carrick was my Aunt’s mare, and my pony was and her mother’s name was Carrie. So, my Micky. Micky and I bonded very well. mares name is Kerry, after my sisters’ best friend when we were growing up. JEB: So, when did you get your first horse? JEB: That’s funny. RR: I got my first horse when I was 13. RR: And Cinnamon, the pony, is Cin- I got 2. I got a mom, who was not a very namon Bear because when she was born, ridable horse and the deal was they were my sister thought I should name her Sar- selling the horses because the family was ah Bear after my best friend when we were getting divorced and they were selling the growing up, Kerry’s sister. But my nephew mare for $200 and the filly for $100 but if thought Cinnamon because that was the you bought them together it was $250 for name of his guinea pig. the 2 of them. JEB: His guinea pig and she is brown I JEB: What a deal! Never mind the feed- am assuming? ing and the care and all of that. RR: Yes. RR: Right! JEB: Very cute. And they are family, ob- JEB: Was this in Vermont or where are viously, the way you talk about them. Do you from? you still compete? RR: Well I was born in North Carolina RR: Some. I haven’t been doing as much and my family has had the farm there since because my 10-year old neighbor has start- 1958, and the farm that I am on in Vermont ed competing. they’ve had since 1965. My father taught at boarding schools, so I spent the school JEB: I was going to ask if your 10-year year living in a boy’s dorm and the sum- old neighbor was your protégé in training. mers in Shrewsbury. RR: Yes, and she started competing this year and it wasn’t fair for me to be focus- JEB: So, you have 7 horses and how ing on me competing and her competing many of them have bankruptcy names, be- at the same time. cause I remember when you got your Irish pony. JEB: So, this was a trade for her helping RR: None of them right now, but I did you on the farm? have Fresh Start, Absolute Priority and RR: Yes. She gets lessons and some of New Value. the dressage shows she has done, she has earned her classes, because Central Ver- JEB: Those are all good horse names mont Dressage Association does exchange that have bankruptcy relevance, right? I for her volunteering, for every half day you remember, was it Fresh Start you got from volunteer, you get a free class. Ireland? RR: Yes, he was my divorce present to JEB: Great. myself. RR: So, she has already earned at least 6 classes. JEB: And he has since passed? RR: Yes, he passed almost 2 years ago JEB: Now does she do anything with the from colic. He was 24. goats – is there any 4-H going on with the goats? Or are they strictly pets? JEB: I’m sorry. Well I think that Fresh RR: They are strictly pets. They are not Start will have to be our journal picture. So milking, they are just my TV. the others? RR: I have Steeplebush Beaumarais, JEB: You don’t watch TV? who is my 28-year-old Morgan, I have got 2 RR: Well, I have one that hasn’t been rescue horses, purebred off the track race turned on in probably 15 years. The goats horses, Well Vicar and Found My Guard. are hysterical to watch.
10 THE VERMONT BAR JOURNAL • WINTER 2018 www.vtbar.org Pursuits of Happiness JEB: I was figuring that probably with all volunteer work? these interests and passions that you prob- RR: Yup. ably wouldn’t have much time left for tele- vision including your day job. We should JEB: And then last year you were rec- probably move on from the farm and find ognized nationally, when the Legal Servic- out about these other things. es Corporation came to Burlington. And RR: Well I haven’t finished with the hors- that was for the volunteer work you do in es yet. bankruptcy? RR: Yup. JEB: Oh, tell me more. RR: The more special thing was last fall I JEB: Well that’s an incredible honor to found out that my mare Kerry’s mom, Car- be recognized by the LSC! Do you know, rie, was with foal with my farrier’s stallion and not cases that end up being voluntary, and my mare is just such a wonderful horse, but do you keep track of how many pro so when I found out that Momma was in bono cases that you do? foal, I told my farrier to tell the breeder RR: Not really. There are some that that I was going to buy that foal. The foal aren’t necessarily sent to me by Vermont was born on June 28th and we brought her Volunteer Lawyer’s Project, where some- home 2 ½ weeks later. We picked up the one comes in and they just don’t have any mare and the foal, so that we could start ability to pay anything, and I will send them dealing with her and handling her right to VVLP and say, tell them that I will do this away. on a pro bono basis when you send it back.
JEB: Oh, wow, congratulations! JEB: I used to do that too. I would have RR: Her mom has now since gone home, them do the screening and some of the be- but I have got the filly and the filly is now a ginning work and then send it back to me. little over 5 months. It is funny, people used to ask all the time, doesn’t everybody who files for bankruptcy JEB: So sweet. So that’s better than TV have no money? And the answer is yes and too! no, but it’s hard to pick the cases that are RR: Oh, and she is just so wonderful. truly pro bono sometimes, right? RR: Right. I do a lot of low bono type JEB: So do you know all your ‘kids’ stuff too. You know folks who are on social birthdays? security that really don’t have a whole lot RR: I think I know all the goats, or at of extra money, I will charge, maybe $300 least all the ones that I have bred. 7 of the for my fee. goats were either bred or the initial one, Nutmeg was born in early January and she JEB: And do the whole case? and her 6 kids and grandkids I now have. RR: Right, and do the whole case, and they will pay the filing fee, and on those, JEB: Now, back to the horses, do you I will even put them on a payment plan at train anybody else, any other protégés in least for my fees, because, they are more jumping or just the 10-year old? than happy to pay $50 a month. RR: I have a student from UVM who hadn’t realized that you could essentially JEB: And that doesn’t even get recogni- earn riding lessons in exchange for work, tion, right, because they count only the pro and she was a volunteer at a therapeutic bono cases, but you say you do a lot of low riding program in town this summer and bono cases. was interested in learning to ride, so she RR: I do A LOT of low bono cases. contacted me, so and started this past summer. JEB: But you have been recognized for your volume of pro bono work, which JEB: So those are your two students? is commendable. In the Pursuits of Hap- RR: But I also teach at CCV. piness column, we interview people about their interests outside of the law, but some- JEB: Oh wow, you teach non-riding as times it is law related. Pro bono work, ac- well! cording to many wellness studies, is one of RR: Business Law, one semester a year. the things that makes people well—volun- teering feels good. You feel good about JEB: That is still a lot of work! Well the outcome and you feel good that you speaking of giving your time, you won the have done it. VBA award 2 or 3 times, for pro bono ser- RR: Yes, that’s so true. Not only do I do vices, correct? the volunteering with the legal work, but RR: Three, I think. I also do a ton of volunteering with the horse stuff, because I volunteer for Central JEB: Ok three, and you get recognized Vermont Dressage Association and Green every year by Judge Brown for bankruptcy Mountain Horse Association. www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2018 1 1 JEB: Teaching or cleaning or… RR: No, for events. For Green Mountain I scribe for their Dressage Shows, general- ly, or steward if they have enough scribes, and I am usually the start or finish timer for the events at Green Mountain and then for
Pursuits of Happiness CVDA I do all the scoring, so that takes up the weekends.
JEB: So, you teach students at home, you do tons of pro bono work here and you volunteer at the two large events in the area for their programs. So how do you find time for say, any musical talents? RR: Well...
JEB: I heard a rumor. RR: I was a violin major in college.
JEB: Oh, I didn’t know, I didn’t know you majored in violin. Did you go to a conser- vatory? RR: Well, I started out at New England Conservatory in Music. I spent two years there and then switched to University of New Hampshire.
JEB: Ok, but then you majored in violin at the University of New Hampshire? RR: Yup, I’ve got a BS in music. In per- formance violin.
JEB: Wow, now did you compete in that or I recall you had done some travels with your violin. RR: When my hips were bad, and I couldn’t ride much, I got back into the mu- sic and went to fiddle camps.
JEB: Fiddle camps! RR: And I tried to declassify myself, so I was studying.
JEB: Transforming from classical music JEB: You would rather not be in a North- so we have the Steeplebush Family Band to fiddling you mean? eastern city of any kind? which periodically gets together and will RR: Yes, so I would take classes in an RR: Right, and in the meantime, there do weddings or play at a bakery or other Irish, Celtic, Mexican, swing, blue grass was one year when there was Mark’s fid- gatherings. and Cajun. One of my best teachers ever dle camp in Johnson City and 2 weeks was Michael Doucet who plays in BeauSo- later was the fiddle section of the Swan- JEB: I had no idea, I haven’t seen the leil and he is just a sweetheart and worlds nanoa gathering at Warren Wilson College, Steeplebush Family Band in public. That’s best teacher! which was another fiddle camp, so I took the name of the farm? a week at Mark O’Connor’s, I did a bank- RR: Steeplebush farm is my farm. In JEB: And that was when you went down ruptcy boot camp in the middle and went the Steeplebush Family Band, my mother south to fiddle camp with him? to Swannanoa which was great. I’ve done a would play her small harpsichord, or she RR: Yes, for several years I did. There’s fiddle week and Celtic week there. also has an electric piano, and my father a fiddler/violinist named Mark O’Connor would play generally harmonica and I the who had a fiddle camp the first 2 years I JEB: You were saying you are classically fiddle. We do a lot of Celtic music--we went, which was outside of Nashville and trained so fiddling is way different? started out as doing contra dance tunes then the 2nd two years I went it had moved RR: Yes, and improvising is a whole new and now we are doing Irish and Scottish as to Eastern Tennessee College in Johnson thing for me. well. City, so I did, I think 4 years at Mark’s camp, and then Mark stopped the southern one JEB: So aside from the camps did you JEB: So you don’t have anybody else and just did the camp in Berklee School find any other outlet, or you just play at that you play with or any solo events? of Music in Boston. After having gone to home sometimes, just to relax? RR: There are some local folks who I play school in Boston for 2 years, I stopped as RR: Well, I haven’t played recently but with periodically, but I haven’t recently. Boston, to me, does not seem conducive my mother was a harpsichordist and my for fiddling, or rather for fiddle camp. father plays the cello and the harmonica,
12 THE VERMONT BAR JOURNAL • WINTER 2018 www.vtbar.org Pursuits of Happiness JEB: Well you have 2 students on the can mix all the passions together at the farm, students at CCV and you have your same time. goats and horses… RR: Well, and years ago, when I was in RR: Yes, because I have been focusing high school, I have been known to play, and on the ponies as opposed to the fiddle. It’s ride my pony in the school marching band, interesting because we had an old mando- playing the trumpet. lin and my mother had it fixed up and it’s sitting in my house waiting for me to learn JEB: You never mentioned that you to figure out how to play that. My next played the trumpet. challenge. RR: Well I don’t really. But the trumpet only requires one hand. JEB: Your next challenge, because you know, why watch TV, because you have JEB: So back to the happiness, basically, plenty of other things that you can do with when you feed the horses and you just look your time! It’s funny because for most of at the mountains, you are there? the people I interview, they focus on the RR: Right. one thing that really helps them relax, rath- er than so many. What would you say is JEB: So, trying to think of a way to wrap the most relaxing of all these things that this up, it seems like you have so many in- you like to do? terests and talents, but it also sounds like RR: I think just being with the critters. you have struck a real balance, where you don’t feel too overly stressed out on most JEB: Being with the critters. It’s very days? soothing, I mean they say that having a pet RR: Well, don’t talk to me the day be- adds to someone’s life span, and helps in fore a Chapter 13 day! terms of your heartrate et cetera. RR: Yes, and they all love attention. JEB: Right. But you do find that balance Even just when I throw hay out in the barn, where you are able to go home and take I open the back door, the big sliding door care of the farm and enjoy the scenery? in the back and just look out at the moun- RR: Yes, absolutely. I love my farm and tains, even if I am just throwing the bale music, and I like saving houses and cars for of hay out, and I will just sit and relax. You people. It’s very rewarding. know the view is just so beautiful. And just chill. JEB: Right, there is something about bankruptcy where people say it is depress- JEB: Just chill. That is very relaxing. It’s ing, but you have a magic wand and you got to be a lot of work though, I mean you get to fix things. have horses that require a lot of care, but RR: Well it’s amazing what can get fixed. it’s still relaxing to you? When I can loan modifications that work, RR: Yeah, and fortunately, my setup, all and I have gotten some sweet loan modifi- the horses are on run in, so no one stays in cations, it really feels great. at night, so that lessens the…. JEB: Right, it puts people on the right JEB: Oh, right, so if you don’t get there track. at 5 in the morning, it’s not the end of the RR: And they can keep their house. world. RR: Right, and it lessens the shoveling JEB: That’s the other thing that people of manure! don’t realize about bankruptcy is it stimu- lates the economy and you help them keep JEB: So here’s a silly question, maybe, going in a positive direction. have you ever played the violin for your an- On theme, thank you for doing the good imals? work, and for enjoying what life has to offer RR: Actually, yes! Well, I don’t know if at the same time. it was just for the animals, but sometimes I RR: Thank you. have been known to fiddle while horses are ______being shod or having their feet trimmed. Do you want to nominate yourself or a fel- low VBA member to be interviewed for Pur- JEB: Oh, it soothes them. So that is fair, suits of Happiness? Email me at jeb@vtbar. and you are not ashamed to admit that be- org. cause that is good for everyone, right? You get to practice, and the horses are calm, right? RR: And the farriers love it.
JEB: And the farriers too, that’s right, so everyone loves it. That’s awesome. You www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2018 1 3 by Paul S. Gillies, Esq. RUMINATIONS We Pledge Allegiance to the Vermont Constitution
At the “Clio in the Courtroom” confer- In Vermont, Attorney General James law, and the rights contained therein speak ence in 1986, Professor Patrick H. Hutton Oakes later concluded the 1935 amend- ‘for the entire people as their supreme began his talk by describing his reaction to ment was unconstitutional, and in 1968 the law.’”8 the requirement that he sign a loyalty oath legislature repealed it, leaving the origi- Having pledged allegiance to the consti- before he could begin teaching at UVM. A nal language from 1931. Lyman Hunt was tution, how then can we overlook what it statute requires all superintendents, prin- a member of the House in 1931 when the requires? cipals, teachers, professors, instructors at act was first passed, and, still a member Chief Justice Isaac Redfield addressed any publicly-supported institution of learn- in 1968, told how the men who fought in this conundrum in 1853. He wrote, “it ing or headmasters and teachers at inde- World War I had opposed the law, feeling seems to me that the right to interfere with pendent schools to swear to “support the that they did not need to prove their loyal- aliens holding real estate in this country, U.S. Constitution, the Vermont Constitu- ty to the Union with an oath.5 strictly and appropriately belongs to the tion, and all State and federal laws.”1 Hut- national, and not to the State sovereignty. ton explained that he had not read the Ver- Section 56 (Oath of Allegiance) It goes upon the basis of some defect in al- mont Constitution before, and signed the legiance; and allegiance is a matter pertain- pledge in blind faith, committing himself to Every person of good character, who ing altogether to the national sovereignty. support whatever it said. comes to settle in this State, having They have the exclusive control of all rela- Professor Hutton later read the Vermont first taken an oath or affirmation of al- tions between this country and foreign na- Constitution closely and wrote a com- legiance to the same, may purchase, tions, or their citizens. And the States are pelling essay on what he found (and had or by other just means acquire, hold expressly prohibited, in the United States pledged his devotion to) in that document.2 and transfer land or other real estate; Constitution, from attempting any stipula- The educator’s oath was first required . . . .6 tions, treaties or compacts, upon the sub- of educators and school administrators in ject.”9 Respect for the Vermont Constitu- 1931, essentially in the form of the law as When nonresidents purchase property in tion is overridden by respect to the federal it appears today. It was driven by a nation- Vermont, intending to relocate here, they constitution. al movement, attempting to prevent the should take the oath of allegiance first, if Why an oath? We are all bound to re- spread of communism in American life. A we read the constitution strictly. The oath spect the constitution and laws, and we 1935 amendment enlarged the idea, pro- is found in Section 56: don’t need to commit to that respect by viding a teacher “shall not indulge in, give taking an oath. or permit, either directly or indirectly, any You ______do solemnly swear (or The Vermont Voter’s Oath, taken by ev- instruction, propaganda or activity in con- affirm) that you will be true and faith- ery resident as a prerequisite to voting in nection with such school, university, college ful to the State of Vermont, and that all elections, does not go so far as to pro- or normal school, contrary to or subversive you will not, directly or indirectly, do hibit anything that would injure the consti- of the constitution and laws of the United any act or thing injurious to the Con- tution, as the oath of allegiance does. The States or of the state of Vermont, but shall stitution or Government thereof. (If an voter’s oath provides, “You solemnly swear so organize, administer and conduct such oath) So help you God. (If an affirma- (or affirm) that whenever you give your school as most effectively will promote the tion) Under the pains and penalties of vote or suffrage, touching any matter that ethical character, good citizenship and pa- perjury.7 concerns the State of Vermont, you will do triotic loyalty to the United States and to its it so as in your conscience you shall judge constitution and laws.”3 This isn’t done, of course. Dozens of clos- will most conduce to the good of the same, In 1964, the U.S. Supreme Court struck ings occur every week without a thought of as established by the Constitution, without down the Washington State loyalty oath, giving the purchasers the oath. This is one fear or favor of any person.”10 The voter is which prohibited “subversive persons” of several provisions of the Vermont Con- wedded to the constitution’s definition of from serving in government or in the stitution that aren’t respected. Perhaps it’s what constitutes “the good” of the State schools. These oaths were offensive to the worthwhile to consider how we can justi- of Vermont, as filtered through conscience, federal constitution, according to the opin- fy the avoidance of constitutional prescrip- and must act fearlessly, impartially, and re- ion drafted by Justice Byron White, on the tions. This is the constitution, after all, not sponsibly, in voting. grounds of vagueness, uncertainty, broad- some mere statute. ness, and due process. The Washington As Justice Marilyn Skoglund wrote in The Conundrum oath regarded a person as subversive who her opinion in In re Town Highway No. 20 abets or advises another to commit an act (2012), the “Vermont Constitution is the Which parts of the Vermont Constitution which assists “a fourth person in the over- fundamental charter of our state and is pre- no longer apply, or may safely be ignored, throw or alteration of constitutional gov- eminent in our governmental scheme. It is and who decides that? Who will parse out ernment.” Justice White wrote that the the expression of the will of the sovereign what’s enforceable and what isn’t and on court didn’t question proper methods to people of the state and confers upon the what grounds? We should have an anno- “safeguard the public service from disloyal government limited powers while simulta- tated Constitution giving fair warning to conduct,” but “measures which purport to neously protecting the basic freedoms of those who would too assiduously attempt define disloyalty must allow public servants the governed. As such, the constitution to adhere to the letter of the language of to know what is and is not disloyal.”4 stands above legislative and judge-made the constitution that not all that appears
14 THE VERMONT BAR JOURNAL • WINTER 2018 www.vtbar.org Ruminations there is true or enforceable. Must we await erty, and pursuing and obtaining hap- litigation to learn what we must respect? piness and safety; therefore no person born in this country, or brought from Counting Ballots over sea, ought to be holden by law, to serve any person as a servant, slave or Section 47 describes how ballots for apprentice, after arriving to the age of statewide offices should be counted: twenty-one years, unless bound by the person’s own consent, after arriving to The voters of each town shall, on such age, or bound by law for the pay- the day of election for choosing Rep- ment of debts, damages, fines, costs, resentatives to attend the General As- or the like. sembly, bring in their votes for Gover- nor, with the name fairly written, to the Supreme Court Judge Stephen Jacob Constable, who shall seal them up, and had a slave, Dinah, purchased by him be- write on them, Votes for Governor, and fore he moved to Vermont, and he avoided deliver them to the Representatives having to pay for her support when she be- chosen to attend the General Assem- came disabled by using Article 1 as a de- bly; and at the opening of the Gener- fense.13 David Avery, Bennington’s Congre- al Assembly, there shall be a commit- gational pastor, brought a slave to town tee appointed out of the Senate and when he was chosen pastor, and excom- House of Representatives, who, after municated a parishioner who criticized him being duly sworn to the faithful dis- for owning another person in a state that charge of their trust, shall proceed abolished slavery.14 Slavery wasn’t entirely to receive, sort, and count the votes abolished in Vermont after the constitution for Governor, and declare the person was adopted, although in time the state who has the major part of the votes, became strongly abolitionist.15 to be Governor for the two years ensu- We should not be too hard on history. It ing. The Lieutenant-Governor and the is imperfect. A constitution, while it can be Treasurer shall be chosen in the man- self-executing, has no army to enforce its ner above directed.11 orders. A constitution guides society, but it The votes for Governor, Lieutenant- cannot guarantee its principles will always Governor, and Treasurer, of the State, be respected. Change takes time. shall be sorted and counted, and the result declared, by a committee ap- Imprisonment for Debt pointed by the Senate and House of Representatives. Section 40 provides that “No person shall be imprisoned for debt.” The 1777 Vermont election law no longer gives the Vermont Constitution treated the subject Constable any role in elections. Election this way: “The person of a debtor, where officials don’t count ballots; ballot-count- there is not a strong presumption of fraud, ing machines do it. The results are tallied shall not be continued in prison after deliv- and reported to the Secretary of State, ering up bona fide, all his estate, real and who calls a committee together of the ma- personal, in possession, reversion or re- jor parties and independent candidates, mainder, for the use of his creditors, in such who then certify the result of the election manner as shall be hereafter regulated by to the legislators. The committee does not law.”16 sort or count or tally; it certifies.12 Notwithstanding the constitution, im- This isn’t so important that it needs to prisonment for debt was the law of Ver- be listed among the great failures of the mont until 1838.17 There were improve- legislature to respect the constitution. But ments over those 60 years in the law of here the statutes have drifted away from poor debtors, but it took several genera- what the fundamental law requires, and it tions of lawmakers to bring the practice bespeaks a lack of care in the amendment to an end. This delay was not done in ig- process or in statutory design. norance. As early as 1803, Governor Isaac Tichenor raised the problem of how to Slavery and Antislavery deal with insolvent debtors in his inaugural. He believed the current law was not suffi- Vermont’s was the first American con- ciently “explicit and guarded to secure the stitution to abolish slavery. Article 1st ad- rights of Creditors, and afford the remedy dresses that, saying: intended for Debtors.”18 In 1824, Governor Cornelius Van Ness believed that at least That all persons are born equally the law should exempt females from the free and independent, and have cer- harsh penalties of imprisonment for debt. tain natural, inherent, and unalienable “The spectacle of an honest and unfortu- rights, amongst which are the enjoying nate female confined in a common jail, with and defending life and liberty, acquir- persons of all descriptions, or even at all ing, possessing and protecting prop- restrained of her liberty, because she may www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2018 1 5 be unable to fulfill a contract, must create vide for proportional representation. At- creased litigation. Taking the time to give the most painful sensation in the mind of torney General Charles Gibson, Jr. con- ideas mature deliberation would bring bet- every feeling and honorable man; while on cluded the constitution did not forbid the ter laws, the Council explained, and if an
Ruminations the other hand, the confinement of one of legislature from calling a convention, but occasional adjourned session was neces- the opposite character, under like circum- explained that the amendments would sary, when the public good required it, the stances, cannot be otherwise than disgust- have to be put to a vote by popular ratifi- legislature could always come back in the ing in its aspect, and demoralizing in its cation.21 He based his decision in part on second year.24 tendency, and is therefore equally to be Article 7th, which gives the community the The legislature did not need an ad- avoided.”19 Finally, during the governor- inalienable right to “reform or alter gov- journed session from 1870 to 1960, a full ship of Silas Jenison, the legislature abol- ernment.” Gibson cited cases from other 90 years. In the years when there was no ished imprisonment for debt in 1838.20 It states that had faced similar challenges, election, the State House remained a mu- took 66 years to make Vermont laws con- and how their courts had respected the ac- seum. From 1968 to the present, there has sistent with the Vermont Constitution. tions of the legislature. He quoted Daniel always been an adjourned session.25 Dur- Webster for the proposition that only one ing those years, there have been special Corporal Punishment of the original 13 state constitutions actual- sessions, as emergencies arose, but those ly provided for an amendment process, but were focused on the issue that justified the To deter more effectually from the how each of them had gone ahead in spite legislature reconvening. commission of crimes, by contin- of the lack of explicit authority to amend Of course government is more compli- ued visible punishment of long dura- the constitutions frequently. cated today than earlier years, and few tion, and to make sanguinary punish- Two years later, Assistant Attorney Gen- would argue we should have no adjourned ment less necessary, means ought to eral Frank Mahady added his opinion on sessions, but there it is again, the inconsis- be provided for punishing by hard la- the subject, responding to State Senator tency between what we pledge allegiance bor, those who shall be convicted of James Jeffords’ inquiry about an alterna- to and what we actually do. crimes not capital, whereby the crimi- tive procedure, similar to the existing con- nal shall be employed for the benefit stitutional amendment process laid out in The Blue Laws of the public, or for the reparations of Section 72 of the constitution, without hav- injuries done to private persons: and ing to call a constitutional convention and The Sunday blue laws remained a feature all persons at proper times ought to be waiting for seven more years. Mahady re- of Vermont law until 1982. That year the permitted to see them at their labor. iterated the opinion of Attorney Gener- Supreme Court threw out the last of the re- al Gibson that the only alternative to the strictions on what you could do on the sev- Section 64 of Chapter II defines “hard la- constitutional amendment process was enth day of the week, in State v. Ludlow bor” as the punishment for crime. This was a convention, but added that the legisla- Supermarkets, Inc. (1982). This was the first essentially the wording of the 1777 Con- ture could not properly limit the authority Vermont decision subjecting legislation to stitution. Corporal punishment—branding of the convention by subject. He also con- judicial review through construction of Ar- on the forehead, cutting off an ear, whip- cluded that the legislature could not form ticle 7 (common benefit clause). Chief Jus- ping on the naked back—these were the itself into a convention, but that delegates tice Albert Barney wrote the decision for predominant punishments from the cre- to such a convention would need to be the Court, who was the author of several ation of Vermont until 1808, when the law elected directly by the people. He did not prior decisions upholding the blue laws. In was changed after the construction of the speculate on how the convention would be Ludlow Supermarkets, he wrote: Windsor State Prison. Thirty-five years of apportioned.22 mutilations came to an end, as the legis- In 1969, the legislature passed an act The State makes the statement that lature finally respected the constitutional calling for a constitutional convention to there is no constitutional right to shop mandate of hard labor. convene at the State House on October on Sunday. This stands constitution- 6, 1969, if voters approved any of seven al law on its head. Our constitutions Reapportionment subjects for amendment at a special refer- are restraints on governmental pow- endum vote to be held on June 3, 1969.23 ers. The rights of citizens are not con- Nothing more perfectly captures the None of the proposals passed, and the ditioned on grants given by constitu- sense of constitutional trauma more than state waited until 1974 to fit the constitu- tional fiat, but exist without the aid of the reaction of the state to reapportion- tion to reality. expressed governmental permission, ment. The shock of reducing 246 members subject only to properly authorized cir- to 150 in the House of Representatives was Biennial Sessions of the Legislature. cumscription where the public welfare strike one; that the requirement came from requires. Since the citizens have long the federal courts, strike two; but the fi- The General Assembly shall meet bi- since chosen to be governed through nal blow was the fact that after reappor- ennially on the first Wednesday next a limited grant of authority to each tionment, the Vermont Constitution still after the first Monday of January, be- branch of government, it is their right, mandated the one-town one-vote system. ginning in A.D. 1915. and this Court’s duty, to see that any There were calls for a constitutional con- legislative action prohibiting as a crime vention. The ten-year time lock on amend- This is Section 7 of Chapter 2. Former- otherwise lawful activity is bottomed ing the constitution meant that ten years ly the legislature met in annual sessions, on the proper exercise of a constitu- might pass before the Plan of Government and elections were held for statewide, leg- tional power assigned to the legisla- could be conformed to its reformed con- islative, and county officers every year. In tive branch. 26 stituency. 1870, the constitution adopted the bien- Late in 1964, Governor Philip Hoff asked nial system. The Council of Censors was The constitution hadn’t changed in the the Attorney General for his opinion on persuaded that the legislature could work 205 years prior to 1982, but our under- whether the Vermont Constitution allowed just as well meeting once every two years. standing of it had evolved. This glacial flu- the legislature to call a constitutional con- It believed “we have had too much legis- idity can be unnerving to a strict construc- vention to amend the constitution to pro- lation,” and too frequent changes that in- tionist view of the constitution. If the con-
16 THE VERMONT BAR JOURNAL • WINTER 2018 www.vtbar.org Ruminations stitution meant this for so many years, the instances. Government isn’t as perfect as a Constitution to any who ask. It’s a small 4” recognition more than two centuries later constitution would expect it to be, but it x 6” booklet, handy and easy to read. Pull that it hadn’t is discomfiting to those who is perfectable. We should respect that too. it out of your pocket from time to time. It treasure its words as gospel. will inspire and surprise you.29 Allegiance Perfectability The Surprise of Spirit At town meeting, we pledge allegiance In 1904, former President Grover Cleve- to the flag, unconcerned that it might be a In Baker v. Carr (1999), Chief Justice Jef- land in his Presidential Problems told “of “graven image,” and the nation for which frey Amestoy rejected plaintiffs’ arguments a legislator who, endeavoring to persuade it stands, which saves us from blasphemy. that a case from 1993 that construed a a friend and colleague to aid him in the We pledge allegiance to the constitution as 1945 statute on adoption, where the court passage of a certain measure in which he our civil gospel. Sometimes you need to recognized the right of a “woman who was was personally interested, met the remark squint at it, take it on blind faith, grateful co-parenting the two children of her same- that his bill was unconstitutional with the for its protection of our rights. Details are sex partner” to adopt the children “with- exclamation, ‘What does the Constitution important, but not all details are of equal out terminating the natural mother’s paren- amount to among friends?’”27 The wink moment. tal rights” was useful to their claims. The that accompanies this remark does not dis- Alabama’s national committeewom- rejection cleared the way for the court to tract from the heresy it displays. an turned to President Harry Truman, and reach its conclusion that Article 7 guaran- Even among friends, the constitution said, “I want to take a message back to the teed the right to civil unions for same-sex needs to be respected. Where practice is South. Can I tell them you’re not ramming couples. Predicting that this ruling on the different from the words of an article or sec- miscegenation down our throats? . . . . That statutory claim might interfere with this tion, we can regard it as an historical anom- you’re not for tearing up our social struc- judgment, the Chief Justice remarked that aly or an imperfection that eventually was ture—that you’re for all the people, not just “[a]lthough the Legislature had undoubt- or will be overcome. When we read about the North?” Truman pulled a copy of the edly not even considered same-sex unions how many years it took for the legislature Bill of Rights from his pocket and read it all when the law was enacted in 1945, our in- to fulfill the mandate of the constitution, as aloud to her.28 terpretation was consistent with its ‘gener- in the treatment of poor debtors or laws Have you ever heard the Vermont Con- al intent and spirit.’”30 that were punished by mutilation, or when stitution read aloud or done it yourself? The majority opinion began its constitu- we see the courts waking up to constitu- When was the last time you read it, even tional analysis by focusing “on the words of tional violations in the exercise of judicial silently, stem to stern? It’s time. It’s online the Constitution themselves, for, as Chief review, we need not condemn them for the at vermontlegislature.gov. The Secretary Justice Marshall observed, ‘although the delay. Law takes longer to mature in some of State gives free copies of the Vermont spirit of an instrument, especially of a con-
www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2018 1 7 in its colonial charter. It asks us to trust the 19 Isaac Tichenor, Inaugural Address, E.P. Wal- means the legislature will adopt to imple- ton, VII Records of the Governor and Council of the State of Vermont V ment it. And it asks us to respect the way (Montpelier, Vt.: Steam Press of J. and J.M. Poland, 1879), 445. 20 Ruminations the courts will interpret it. It’s like the tra- “An Act, to abolish imprisonment for debt,” ditional Anglican marriage vow, “not to be Acts and Resolves passed by the Legislature entered into unadvisedly or lightly; but rev- of the State of Vermont at their October Ses- sion, 1838 erently, discreetly, advisedly, soberly, and in (Montpelier, Vt.: E.P. Walton and 32 Sons, 1839), 8. In his 1838 inaugural, Jenison the fear of God.” It’s serious. said, “Jail should be for punishment; the debtor ______should not be confused with a criminal; and the Paul S. Gillies, Esq., is a partner in the last person who should be able to control the Montpelier firm of Tarrant, Gillies & Richard- freedom of a debtor is the creditor. The debtor son and is a regular contributor to the Ver- should be able to disable the creditor upon tak- ing the oath, and avoid imprisonment. At least mont Bar Journal. A collection of his columns a debtor should be able to demand an immedi- has been published under the title of Un- ate trial, rather than leaving it to the discretion of common Law, Ancient Roads, and Other Ru- the ‘vindictive creditor.’” 21 minations on Vermont Legal History by the 1964-66 Opinions of the Attorney General 93- Vermont Historical Society. 103. 22 1966-68 Opinions of the Attorney General ______122-128. 1 16 V.S.A. § 12. The oath is not required of any 23 1969, No. 74. teacher who is a citizen of a foreign country. 24 Records of the Council of Censors of the State 2 The “Clio in the Courtroom” lectures were of Vermont 644-648. The Council added that published in 56:3 Vermont History (Summer less frequent elections, would be a secondary 1988), and include essays by Justice Thom- benefit. Elections, “accompanied as they are by as Hayes, and Professors Hutton and Gary J. local contests, the intrigues of cliques, and the Aichele. Professor Hutton’s “The Print Revolu- struggle of hungry aspirants, have in them much tion of the Eighteenth Century and the Draft- that is demoralizing. Not to mention the cor- ing of Written Constitutions” dismissed the idea rupt appliances which unscrupulous men bring that interpreting the constitution should include to bear more or less in every close contest, there trying to “encapsulate the ‘original intent’ of are influences which cannot be stigmatized as the framers.” “We must interpret their designs immoral which have yet an unhealthy tendency. in terms of the world in which we live,” treating Our frequent elections bring about an eagerness precedent not as an established rule but rather for place and a consequent courting of popular- as “a point of departure in the construction of ity that works evil in our society. Our leading something new.” Patrick H. Hutton, “The Print men in such conditions, instead of being manly Revolution of the Eighteenth Century and the and outspoken in their convictions, become tim- Drafting of Written Constitutions, 56:3 Vermont id in rebuking evil and cautious in sustaining the History 161. right. Instead of being public teachers, advocat- 3 V.S. § 4301. ing wise counsels and combating prejudices and 4 Baggett v. Bullitt, 377 U.S. 360, 379-380 striving to turn public thought into higher and (1964). better courses, our public leaders flatter the van- 5 “House advances teach oath constitutionality ity and stimulate the prejudices of the multitude, stitution, is to be respected no less than bill,” Burlington Free Press, 27 January 1968, 11. and follow wherever the passions or interests of its letter, yet the spirit is to be collected 6 Vermont Constitution Chapter II, Section 66. the many may lead them. Instead of big states- 7 chiefly from its words.’”31 What is this spir- Id., Section 56. men they become demagogues.” 8 In re Town Highway No. 20, 191 Vt. 231, 248 25 The General Assembly: A Potpourri it? While we’ve been reviewing the chasms (Montpe- (2012), ¶ 26. lier, Vt.: Secretary of State, 1994), 35-36. that sometimes separate what government 9 State v. Boston, C.& M.R. Co., 25 Vt. 433, 440 26 State v. Ludlow Supermarkets, Inc., 141 Vt. does and what statutes say from what the (1853). 261, 264 (1982). 10 Vermont Constitution, Ch.II, Sec. 27 Grover Cleveland, Presidential Problems (Lon- literal words of the constitution seem to re- 11 quire, we have been too literal. We haven’t Id., Section 47. don: G.P. Putnam’s Sons, New York: The Century 12 17 V.S.A. § 2607. Co., 1904), 29. The story has also been attrib- planned for another layer of constitutional 13 Selectmen of Windsor v. Jacob, 2 Tyl. 192 uted to Andrew Jackson. Edward V. Schneier, authority that isn’t explicit in its language, (1802). Crafting Constitutional Democracies: The Poli- but that emerges like a mist over a water- 14 John L.T. Phillips, “Sketches of the Early Min- tics of Institutional Design (Lanham, Md.: Row- Berkshire Historical and fall to rule the words. isters of Windsor,” in man & Littlefield Publishers, Inc.), 12. Scientific Society I (Pittsfield, Ma.: Sun Printing 28 If it is fair at all for us to expect to know William E. Leuchtenburg, “The Conversion Company, 1886), 55-56; Isaac Jennings, Memo- of Harry Truman,” 42:7 American Heritage (No- to what we are pledging allegiance, where rials of a Century: The Early History of Benning- vember 1991). https://www.americanheritage. does spirit come into our understanding? ton, Vt. and Its First Church (Boston: Gould and com/content/conversion-harry-truman No one can read the constitution today Lincoln, 1869), 61-63. 29 Aside from what appears in the present con- 15 The Problem of Slav- and predict how it will be read in anoth- Harvey Amani Whitfield, stitution, there were parts of this fundamental ery in Early Vermont, 1777-1810 (Barre, Vt.: Ver- law since amended out that will interest you. er generation, what spirit will arise to col- mont Historical Society, 2014); Michelle Aro- For instance, the Vermont Constitution once or traditional understandings and upend nosky Shelburne, Abolition & the Underground required candidates for the House of Repre- long-established cultural and legal prin- Railroad in Vermont (Charleston, S.C.: The His- sentatives to be “persons more noted for wis- ciples. Blind faith to a constitution is not tory Press, 2013). dom and virtue.” Vermont Constitution (1793), 16 Allen Soule, Laws of Vermont 1778-1781, 12 overcome if we insist on reading the text Ch.II, Sec.8. This prerequisite was eliminated in State Papers of Vermont (Montpelier, Vt.: Secre- the amendments of 1974. Paul S. Gillies, Revis- before taking an oath of allegiance to it. tary of State, 1964), 17. ing the Vermont Constitution: 1785-1786, and We commit to what it says, and what it will 17 “An Act, to abolish imprisonment for debt,” Beyond,” 17:5 Vermont Bar Journal 6 (October be construed to mean in the future. Acts and Resolves passed by the Legislature of 1991). the State of Vermont at their October Session, 30 The oath asks a lot of us. It asks us to Baker v. State, 170 Vt. 194, 200 (1999). 1838 (Montpelier, Vt.: E.P. Walton and Sons, 31 Id., 170 Vt. at 207. commit to 8,000 words originally adopted 1839), 8. 32 1789 U.S. Book of Common Prayer, in 1777, largely based on what Pennsylva- 18 Isaac Tichenor, Inaugural Address, E.P. Wal- nia had adopted the previous year and on ton, IV Records of the Governor and Council of the State of Vermont V principles William Penn had written in 1682 (Montpelier, Vt.: Steam Press of J. and J.M. Poland, 1877), 531.
18 THE VERMONT BAR JOURNAL • WINTER 2018 www.vtbar.org
by Teri Corsones, Esq. WHAT’S NEW? Vermont Commission on the Well-Being of the Legal Profession Update
The Vermont Commission on the Well- lawyer professional liability carriers. Carleton and Laura Wilson as Co-Chairs of Being of the Legal Profession was the sub- The Vermont Supreme Court established the Legal Employers Committee, and Chris ject of a plenary session at the March 23, the Vermont Commission on the Well-Being Newbold (ALPS Executive V.P.), as Chair of 2018 VBA Mid-Year Meeting. At that ses- of the Legal Profession on January 2, 2018. the Lawyer Professional Liability Carriers sion, Chief Justice Paul Reiber described the In the corresponding Charge and Designa- Committee. Each Commissioner enlisted background for the creation of the Commis- tion, the Court noted: multiple Committee members.5 sion, introduced the Commission members, • Supporting lawyer, judge and law stu- Since March, the various stakeholder com- and welcomed keynote speaker Terri Har- dent well-being contributes to success mittees have met regularly to review and rington, then-newly installed Executive Di- in the delivery of legal and judicial ser- evaluate the recommendations of the Na- rector of the New Hampshire Lawyers As- vices, and enhances lawyer and judicial tional Task Force on Lawyer Well-Being spe- sistance Program (NHLAP). Ms. Harrington ethics. cific to each group. For example, the Bar As- spoke eloquently about the need for both • The Vermont Supreme Court fully sup- sociation Committee met monthly by phone proactive and reactive resources for mem- ports the concept of lawyer, judge and from March through August to review rec- bers of the legal profession. Following is a law student well-being as a critical com- ommendations pertaining to: CLE program- synopsis of the information shared during ponent of lawyer and judicial compe- ming on well-being related topics; educa- the plenary session, an update about the tence and reinforces the critical role of tional materials to support “best practices” Commission’s work since then, and a fore- the Supreme Court in overseeing the for legal organizations; empirical research taste of next steps. profession. on lawyer well-being as part of member sur- In December 2016, the American Bar As- • The Vermont Supreme Court recogniz- veys; creation of a lawyer well-being com- sociation Commission on Lawyer Assistance es its desire to take an active role in the mittee;6 and planning for lawyer well-be- Programs and the Hazelden Betty Ford development of effective mechanisms ing activities and events at bar association Foundation published a study of practicing through convening the relevant stake- events. The Committees were tasked with lawyers that revealed alarming statistics. It holders in Vermont to improve the well- preparing Committee Reports detailing the found that between 21 and 36 percent of being of the profession and the bench. results of the various reviews, and the Com- lawyers qualify as problem drinkers, approx- mission is in the process of creating a state imately 28 percent struggle with some lev- The Vermont Commission on the Well-Be- action plan to submit to the Vermont Su- el of depression, 19 percent suffer from se- ing of the Legal Profession was established preme Court by year’s end. vere anxiety and 23 percent live with elevat- for the purpose of creating a state-wide ac- One of the most critical aspects of the ed stress.1 tion plan with specific proposals for the Ver- state action plan will be to address the sec- A similar survey of law students, also pub- mont Supreme Court and its relevant com- ond area identified in the Commission’s lished in 2016, showed that 25 percent of mittees to consider regarding the following Charge and Designation: a plan to support students were at risk for alcoholism, 17 per- three areas: and sustain a Lawyers Assistance Program to cent experienced some level of depression, 1. Develop a policy for confidential inter- assist lawyers, judges and law students with 14 percent suffered from severe anxiety, 23 ventions for lawyers, judges and law mental health, well-being and /or substance percent exhibited mild or moderate anxiety, students struggling with mental health, abuse resources. By way of brief back- and 6 percent had serious suicidal thoughts well-being and/or substance abuse ground, Vermont’s “Lawyers Concerned for in the past year.2 challenges. Lawyers” began under Rutland Attorney Although like studies have not been un- 2. Develop a plan to support and sustain John Webber’s volunteer guidance in the dertaken in Vermont, Vermont Bar Coun- a Lawyers Assistance Program in Ver- early 1990’s. Incorporated in 2006 as Law- sel Michael Kennedy extrapolated the data mont, to assist lawyers, judges, and law yers Concerned for Lawyers, Inc., the orga- from the studies in a March 3, 2016 Ethical students with mental health, well-being nization operates today on a voluntary basis Grounds blog post entitled “Lawyers Help- and/or substance abuse challenges. as the Vermont Lawyers Assistance Program ing Lawyers.” In the post, he suggested that 3. Provide on-going educational opportu- (VTLAP). Its website explains that it “pro- approximately nities for lawyers, judges and law stu- vides confidential, meaningful assistance to • 500 active Vermont attorneys are prob- dents regarding mental health, well-be- lawyers, judges, law students and their fami- lem drinkers ing and/or substance abuse self-assess- lies in coping with alcoholism and other ad- • 500 active Vermont attorneys exhibit ments, programs and resources. dictions, depression, and other personal or signs of problem anxiety professional crises.” • 720 active Vermont attorneys struggle The Charge and Designation identified It is anticipated that the Commission’s with some level of depression3 nine Commissioners associated with vari- state action plan will include a proposal for ous stakeholder groups, including Chief Jus- a funded Vermont Lawyers Assistance Pro- In response to the studies, a National Task tice Reiber as Commission Chair, Judge Bill gram, likely through lawyer licensing fees. Force on Lawyer Well-Being was convened Cohen as Chair of the Judges Committee, Lawyer license fees are typically the prima- and issued “The Path to Lawyer Well-Be- Teri Corsones as Chair of the Bar Associa- ry funding mechanism for LAP programs na- ing: Practical Recommendations for Positive tion Committee, Mike Kennedy as Chair of tionwide. For example, the Committee on Change” in August 2017.4 The Report in- the Regulators Committee, Dean Thomas Lawyer Well-Being of the Supreme Court of cluded 44 recommendations for judges, reg- McHenry as Chair of the Law School Com- Virginia recently completed its state action ulators, legal employers, law schools, bar as- mittee, Joshua Simonds as Chair of the Law- report. Acknowledging that its report rec- sociations, lawyer assistance programs, and yers Assistance Program Committee, Ian ommends additional costs to the legal pro-
20 THE VERMONT BAR JOURNAL • WINTER 2018 www.vtbar.org What’s New fession taken from lawyer license fees, the no longer sufficient to wait to refer someone org/home/vol66/iss1/13/ 3 Committee noted: “Our collective judgment to help until he’s hospitalized or her practice Ethical Grounds, The Unofficial Blog of - Ver mont’s Bar Counsel, Lawyers Helping Lawyers is that the immediate benefit to individual has cratered. Refer early. Not to save clients 3/10/2016. https://vtbarcounsel.wordpress. members of the profession and the prophy- from harm, but to help a fellow human being com/2016/03/03/lawyers-helping-lawyers/ lactic benefit to the profession and the pub- get into recovery or treatment…We cannot 4 See ABA’s National Task Force on Lawyer Well- lic of education, training, and prevention, in- let the topic fade into the background. The Being: Creating a Movement to Improve Well- Being in the Legal Profession, . cluding intervention for impaired legal pro- numbers prove that lawyers need help now. August 14, 2017 8 https://www.americanbar.org/content/dam/aba/ fessionals, substantially outweigh the slight We must provide it.” images/abanews/ThePathToLawyerWellBeingRe- cost associated with the establishment and Many thanks to the Commission and portRevFINAL.pdf funding of the following proposals. We be- Committee members who have worked hard 5 A list of the members of each committee is lieve that they are fundamental to compe- over the past year to formulate a plan for on our website www.vtbar.org under “For Attor- neys/Commission on the Well-Being of the Legal tent and professional legal services, and will the Court’s review and response. Please stay Profession.” https://www.vtbar.org/FOR%20AT- be accepted as core responsibilities atten- tuned for that response. TORNEYS/Vermont%20Commission%20on%20 dant to the privilege of practicing law.”7 ______the%20Well-Being%20of%20the%20Legal%20 The Vermont Commission’s state action Teri Corsones, Esq. is the Executive Direc- Profession.aspx 6 plan is due December 31, 2018. Anticipat- tor of the Vermont Bar Association. On September 27, 2018 the VBA Board of Bar Managers voted to approve a new Lawyer Well- ing that the Vermont Supreme Court will act ______1 Being Committee, with Samara Anderson and Mi- upon the recommendations in the state ac- “The Prevalence of Substance Use and Other caela Tucker serving as co-chairs. tion plan soon in the new year, the VBA plans Mental Health Concerns Among American Attor- 7 Found at the Virginia State Bar site, www.vsb. neys”, The Journal of Addiction Medicine, Jan/Feb to report on the Court’s response to the org, A Profession at Risk: Report of the Commit- 2016, Vol. 10, Issue 1. https://journals.lww.com/ tee on Lawyer Well-Being of the Supreme Court state action plan at the VBA Mid-Year Meet- journaladdictionmedicine/fulltext/2016/02000/ of Virginia. http://www.vsb.org/docs/A_Profes- ing scheduled for March 21-22, 2019 at Lake The_Prevalence_of_Substance_Use_and_Other_ sion_At_Risk_Report.pdf Mental.8.aspx 8 Ethical Grounds, The Unofficial Blog of - Ver Morey Resort in Fairlee. As Mike Kennedy 2 Keep it on the Front Burner “Suffering in Silence: The Survey of Law Stu- mont’s Bar Counsel, Keep it on the Front Burn- noted in his post dent Well-Being and the Reluctance of Law Stu- a little over a year ago, “Whatever we do er, 7/18/2017. https://vtbarcounsel.wordpress. dents to Seek Help for Substance Use and Men- com/2017/07/18/lawyers-helping-lawyers-keep- Journal of Legal Education to address this problem, we need to make tal Health Concerns,” , it-on-the-front-burner/ sure it includes spreading the word that it is Vol. 66, Number 1 (Autumn 2016). https://jle.aals.
www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2018 2 1 by Beth McCormack, Esq. WRITE ON A Good Rebuttal Is Like Obscenity: You Know It When You See It
Introduction tioner/Appellant must reserve time for re- This advice is apropos for appellate ar- buttal at the beginning of the argument, gument rebuttals because in the case of It is Appellate Advocacy season at Ver- or stop their argument early, reserving the the oral argument, you’ve had your brief mont Law School; that time of year when rest of the time for rebuttal. In the latter and the other side’s brief, so “you know our second year law students research, scenario, Petitioner/Appellant only suc- perfectly well what the other side is go- brief, and deliver an oral argument on a ceeds in receiving rebuttal time by “stem- ing to say.”9 In short, Judge Easterbrook pending Supreme Court case. Each year, ming the tide of the justices’ questions be- suggests crafting your argument in a way many members of the Vermont Bar gra- fore his or her allotted time has elapsed,” that makes rebuttal unnecessary.10 He sug- ciously donate their time reading briefs, which, depending on the panel, can be im- gests reserving a small amount of time in judging oral arguments, and then giving possible.2 As most readers already know, the rare case that the other side takes the feedback to our students. One thing I the Vermont Supreme Court adopts this opportunity to raise an entirely new argu- have noticed in listening to feedback dur- second approach. ment or to make a significant unsupported ing my years of teaching Appellate Advo- When making a rebuttal, a short road- factual assertion.11 But do not be afraid to cacy and coaching Moot Court is that ev- map with signposting words is usually help- waive that time if either of those rare oc- eryone has an opinion on the rebuttal part ful, so the Judges know what is coming. casions does not happen. If you do de- of the oral argument. Sometimes a single For example, you might begin like this: cide to waive your reserved time for rebut- panel of judges can produce multiple views ”Your honors, I have two points on rebut- tal, stand up and state, “Petitioner/Appel- on whether a student should or should not tal. First, counsel for Respondent stated . lant waives the remaining time” or words have used the rebuttal, how much time . . This is irrelevant because . . . . Second, to that effect. should have been reserved, and whether counsel cited . . . That case does not apply the rebuttal was effective or not. Given here because . . . .”3 Once you have made Tip # 2: Reserve Only a Minute this panoply of different views on rebuttal, your points, sit down. Sometimes the sim- or Two for Rebuttal I often struggle when asked by students ple close: “Thank you” can do the job per- what makes a good rebuttal, often left an- fectly.4 As noted above, the best advice is some- swering: a good rebuttal is like obscenity, Keep in mind that judges will often ask times not to use the rebuttal. However, you know it when you see it.1 questions during rebuttal (just as they how much time to reserve for rebuttal is As a result of this long-standing rebut- would during the main argument), and filled with controversy. Most articles on re- tal controversy, I began researching articles therefore, your plan can easily be derailed. buttals suggest reserving no more than two from the experts on rebuttals. However, I As noted, a rebuttal roadmap may help or three minutes.12 Some feel quite strong- was able to find few articles devoted to re- with this, as the judges may be eager to ly that one-minute is the perfect time for buttals; most mentioned them in passing in hear what points you have identified as rebuttal, while others prefer two to three articles centered on oral arguments. How- crucial. But like in all aspects of oral argu- minutes in case an argument you have not ever, from the available research, I have ment, the best laid plans often go awry. To anticipated comes up. The most common- collected five tips for delivering a stand out make the most of the rebuttal, consider the ly recommended time is two minutes. rebuttal. I then tested these tips by review- following 5 tips. ing several recent Vermont Supreme Court Tip # 3: Remember, Oral Argument Oral Arguments to see if the advocates ad- Tip # 1: Sometimes the Best Use of is Linear: Avoid Acronyms and hered to them. Rebuttal is Not to Use It Other Complexities
Rebuttal Basics Judge Frank H. Easterbrook, a long time This tip applies well to all parts of oral judge on the United States Court of Ap- and written advocacy, but applies with spe- In most appellate courts, after the Peti- peals for the Seventh Circuit offered this cial force in rebuttals. One of the most im- tioner/Appellant has delivered their argu- advice: “The very best use of rebuttal time portant differences between brief writing ment, the Respondent/Appellee delivers is not to use it. The judges are ever so and oral argument is that oral argument is their response. Ideally the Respondent or happy when you say, ‘I have nothing fur- linear.13 “No one can go back and rewind Appellee responds to the arguments the ther, Your Honor.’”5 Judge Easterbrook re- the tape.”14 That means, that advocates Petitioner/Appellant made. The rebuttal ports that of his approximately 15 cases should avoid complexity whenever possi- is the Petitioner/Appellant’s chance to ad- before the Supreme Court as a Petitioner, ble. One example of needless complexi- dress Respondent/Appellees’ argument. he gave a rebuttal in only one of those cas- ty that commonly appears in oral argument In other words, the rebuttal is a chance for es.6 Judge Easterbrook believes that law- and especially rebuttals (where time is by the Petitioner/Appellant to have the last yers do not waive rebuttals nearly enough.7 nature even more limited) is the use of ac- word before the judges make their deci- (Incidentally, he says the same thing about ronyms. sion. However, ineffective or improper use the use of reply briefs, referring to them As Legal Writing scholar Bryan Garner of rebuttal can backfire and leave the panel as “repeat briefs.”). According to Judge warns: “specialists often glory in concoct- with a negative impression of the Petition- Easterbrook, “if you’ve done your job well, ing an alphabet soup that no one else finds er/Appellant, or their argument. you anticipate all of the arguments the oth- digestible.”15 (Incidentally, environmental Depending on court rules and local cus- er side is going to make. And you address lawyers, as many of our graduates become, tom, there are generally two ways for Pe- them, not in the form of counterpunching . are “the grossest offenders.”16) Garner titioner/Appellant to take a rebuttal. Peti- . . but in your affirmative case.”8 gives an example in his book Legal Writing
22 THE VERMONT BAR JOURNAL • WINTER 2018 www.vtbar.org Write On in Plain English: rebuttal that had you wanting to jump out only had 15 seconds left due to the judg- Rather, MCC’s involvement in the facts of your seat” during your opponent’s ar- es’ many questions during her affirmative giving rise to the action was limited to gument. Maybe you wanted to jump out argument).25 Indeed, in her oral argument, the following: MCC agrees to defend of your seat because what your opponent you can hear her following Judge Easter- and indemnify (1) the RCWD under the said was so materially incorrect; and you brook’s advice addressing the Appellee’s insurance policy against Grosse’s civ- can easily correct it. Or perhaps you want- likely arguments. il claims, and (2) VII against RCWD’s ed to jump out of your seat because your In the case Lawson v. Halpern-Reiss, et. cross-complaint. 17 opponent pointed out a weakness in your al. (No.18-157), argued on December 5, argument that seemed to catch the panel’s the Appellant’s attorney left six minutes for Incomprehensible. The lack of clarity is attention, and you’ve got a solution that rebuttal, but stated he would use only “45 even more potent in an oral argument, you know will ease the panel’s mind. All of seconds of it.”26 Close to his word, the Ap- where the audience does not have the ben- these scenarios are ripe areas for rebuttal. pellant’s attorney used only about a minute efit of rereading or going back to where Of course, to follow this advice, you must of his rebuttal, and focused only on one is- these words were defined. To keep your really listen during your opponent’s oral ar- sue that was central to the Appellee’s ar- justices with you during the grand finale of gument. Eschew preplanned or prewrit- gument and seemingly of interest to the your oral argument, avoid acronyms or oth- ten rebuttals. Instead, listen to the judg- judges. The Appellant did not escape a er needless complexities. es’ questions and your opponent’s argu- few follow up questions from the judges, ments and plan to rebut on the issues that however, which is always a risk when tak- Tip # 4: Don’t Sweat the Small Stuff seemed most important to the judges dur- ing rebuttal. ing your opponent’s argument. That means On December 4, 2018, the Vermont Su- Advocates are sometimes tempted to decisions about rebuttal must be made on preme Court heard the case State v. Park- harp on misstatements of fact or law in the spot. You may also “jot down a word way Cleaners, et al. The Appellant had 1 their opponent’s argument, even if those or phrase from your opponent’s presen- minute and 45 seconds left for rebuttal.27 misstatements are not material. Do not use tation to make your point more effective, While the Appellant’s attorney did not give rebuttal to point out small mistakes that e.g., “Your honors, counsel for Respondent a substantive roadmap, he did say he had your opponent made. For example, do not stated that Ms. Miller’s attempts to estab- only a few points to make. He made two use rebuttal time to point out citation er- lish a relationship with her father were ‘too points directly addressing the Appellee’s rors, unimportant errors in dates, or minor little too late.’ This time limit on family re- argument – focusing on arguments Appel- factual inaccuracies. Instead, focus only on lationships is precisely what is wrong with lee made that he did not believe were rele- those inaccuracies or statements that have Section 1409(a).”21 vant. This advocate did not escape a ques- legal significance to your case. Failing to Judge Easterbrook also warns of a few tion from Justice Robinson, however, and heed this advice may make you look need- more rebuttal “Don’ts.” He warns specif- used the entire time. lessly fussy or, worse yet, disrespectful of ically against attempting to sandbag the Despite my small sample size, I drew the Court’s time. other side by raising a new argument in re- several conclusions about rebuttals in the buttal. He warns that when he was a judge, Vermont Supreme Court. The Appellants Tip # 5: Actually Rebut and this occurred, he would say, “Counsel, must wrap up their affirmative arguments this is time to be used in rebuttal. What, to save time for rebuttal, many advocates Nearly everyone agrees on this: use the particularly, are you rebutting?” 22 Judge were not successful in saving time for re- rebuttal to actually rebut. That is, use the Easterbrook also reports seeing some law- buttal. In most cases, those that were of- rebuttal to refute or respond to the ar- yers who represent the Petitioner/Appel- ten had less than a minute left, but some guments your opponent made.18 United lant attempt to waive their argument, and were able to use that time effectively to States Supreme Court Rule 28.5 makes then when the Respondent/Appellee gives address one key point. Be warned, how- clear that “counsel making the opening their argument, try to give the main argu- ever, most advocates before the Vermont argument shall present the case fairly and ment as a rebuttal. The strategy apparent- Supreme Court were not able to deliver a completely and not reserve points of sub- ly is to have the last word on all issues. He rebuttal without interruption with follow stance for rebuttal.”19 Some judges will in- also tells of an attorney beginning the ar- up questions! That is a risk to take when terrupt advocates who fail to heed this ad- gument by stating, “I reserve all of my time trying to end on a strong note. As I men- vice, stating something like, “Counselor, for rebuttal.”23 In such scenarios, Judge tioned, the best-laid plans often go awry. do you have any rebuttal to offer?”20 In Easterbrook reports that his response other words, do not use the rebuttal to: would be “In that event, there won’t be any Conclusion • Repeat arguments you made in your time for rebuttal. That’s not the way the initial argument; court is set up, and with good reason.”24 In I hope this advice is useful in helping • Raise arguments that you did not get summary, either waive your rebuttal time or you make stand out rebuttals in 2019 and into in your initial argument; use it to actually rebut. beyond. From all of us at Vermont Law • Attempt to respond to every argu- School, best wishes for a Happy New Year. ment or point made by your opponent Tips Tested ______in his or her argument; Beth McCormack is the Vice Dean for • Respond to your opponent’s argu- I took this collected advice and tested it Students and a Professor of Law at Ver- ments that the panel seemed uninter- in several recent oral arguments before the mont Law School, where she teaches Legal ested in; or Vermont Supreme Court. (Recall, howev- Writing and Appellate Advocacy. Prior to • (As noted in Tip # 4) Harp on non-ma- er, that the Vermont Supreme Court does joining the faculty at VLS, she practiced in terial mistakes your opponent made. not allow advocates to reserve rebuttal the litigation department of the Boston law time ahead of time.) The Vermont Supreme firm Mintz, Levin, Cohn, Ferris, Glovsky and In my experience, this advice is the easi- Court heard the case State v. Melissa Ro- Popeo, P.C. est to understand but the hardest to ap- bitille (No. 17403) on December 5, 2018. ______ply. One guiding principle I once heard The Appellant’s attorney followed tip # 1 See Jacobellis v. Ohio, 378 U.S. 184, 197 that resonated was: “Raise the issues on 1 and waived her rebuttal (although she (1964) (Stewart J., concurring) (“I shall not www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2018 2 3 today attempt further to define the kinds 9 Id. 19 Supreme Court Rule 28.5, cited in Mary- of material I understand to be embraced 10 Id. Beth Beazley, A Practical Guide to Appellate 11
Write On within that shorthand description [of por- Id. Advocacy, 270 (3d ed. 210). nography], and perhaps I could never suc- 12 See, e.g., James D. Dimitri, Stepping up to 20 Supra note 2. ceed in intelligibly doing so. But I know it the Podium with Confidence: A Primer for Law 21 Id. when I see it, and the motion picture in- Students on Preparing and Delivering an Appel- 22 Supra note 5. volved in this case is not that.”) late Oral Argument, 38 Stetson L. Rev. 76, 23 Id. 2 Mary-Beth Beazley, A Practical Guide to Ap- 101 (2008) (recommending no more than 24 Id. at 11. pellate Advocacy, 271 (3d. ed. 2010). two of three minutes be reserved for rebut- 25 https://www.vermontjudiciary.org/supreme- 3 See supra note 2 at 271-272. tal ). court/audio-recordings-oral-arguments (last 4 Id. at 271. 13 Supra note 5 at 25. visited December 14, 2018) (State v. Melissa 5 Judge Frank H. Easterbrook, Interviews 14 Id. Robitille). with United States Court of Appeals Judges, 15 15 Bryan A. Garner, Legal Writing in Plain Eng- 26 Id. (Lawson v. Halpern-Reiss, et al.). Scribes J. Legal Writing 8 (2013). lish, 60 (2d. ed. 2001). 27 Id. (State v. Parkway Cleaners). 6 Id. 16 Id. 7 Id. at 9-10. 17 Id. at 61. 8 Id. 18 See id. at 101.
upcoming vba cle’S NOT TO BE MISSED!
January 18-19, 2019: YLD Mid-Winter Thaw @ The Hotel Omni Mont-Royal, Montréal, CA Ethics Bowl, Mediation, Going Public, Getting Paid, Estate Litigation and Appeals. Keynote Speaker Madeline Kunin, cocktail receptions, yoga and more in the festive city of Montréal. Get your passports ready and enjoy the thaw!
AND SAVE THESE DATES:
March 21-22, 2019: Mid-Year Meeting @ Lake Morey Resort, Fairlee Implicit Bias, Sexual Violence, Intellectual Property, Contract boilerplate, Vt Basics 101 track, State Constitutions, Food and Beverage Law and more! ______
April 25, 2019: Basic Skills in Vermont Practice and Procedure @ Trader Duke’s Hotel, South Burlington ______
May 23-24, 2019: Solo and Small Firm Conference @ Basin Harbor Club, Vergennes ______
And don’t forget our winter webinar series! Law Office Technology was held 12/12@12 and it was a success! Our next webinar will be in mid-January on Law Office Marketing: Networking, social media, website and more. February’s webinar will be on Law Office Financial Management: Time & billing, Accounting, Electronic payments, trust accounting and more. We will also have a second February webinar on client intake technologies. March will be all about setting business goals, so stay tuned to our website, monthly e-newsletters and social media!
24 THE VERMONT BAR JOURNAL • WINTER 2018 www.vtbar.org by Jennifer Emens-Butler, Esq. Women in the Judiciary Event
With the stage set by the December 12, 2018 cover story in Seven Days1, the VBA Women’s Division hosted its panel dis- cussion on the evening of December 12th featuring Judge Christina Reiss, Justices Marilyn Skoglund and Beth Robinson and Judge Helen Toor. With the theme being the importance of having women in posi- tions of authority, the Women’s Division capped off 2018, the Year of the Woman, with this enlightening and engaging event. Like the Seven Days article, much of the fo- cus was delving into the paths that each of these successful women took to end up where they are today. Approximately 100 attendees enjoyed the panel presentation by the judges and justices, moderated by Assistant Attorney General Alison Stone, with time for some Q&A at the tail end of the program. Perhaps not surprisingly, none of the judges had life plans that involved becom- ing a judge. Judge Reiss, when asked how she went from being a French major to be- coming the first female Article III Judge in On the path to judgeship, Justice Rob- to be confident enough to not stress over Vermont, noted that she got through ev- inson counsels folks to realize that there having to leave early to pick up kids or re- ery challenge by just saying, “why not is a huge element of a “crap shoot.” Be- quest an alternate schedule. She also re- me?” Justice Skoglund, who majored in cause your planned path may not happen, minded the attendees that court advoca- sculpture, credits her success to just work- she advises that you take steps for their cy is communicating, finding the best ad- ing hard. When the opportunity to be- own sake--to pursue what you are most vocates to be conversational and comfort- come a judge came to her, she initially de- passionate about and do it well. Justice able rather than confrontational. Justice clined, saying that she just couldn’t do that Robinson’s involvement in the Baker (civil Skoglund counseled to always work hard to her kids, but when she approached her union) case was never considered a step or and be prepared for cases. Justice Robin- kids with the news, they all encouraged her path to judgeship, just something she was son and Judge Toor, garnering nods from to do so, saying, yes you can! She noted passionate about and was compelled to do all the judges, stressed that being courte- that having Denise Johnson on the Court well. ous to your opponent, both in court and in already was inspiring, especially seeing All of the judges remarked some about writing, is one of the most important fac- working female lawyers and judges with the joys and challenges of being a judge. tors in good advocacy. kids. She noted that one of her biggest Judge Toor noted how shocked she has When questions arose about sexism inspirations was Janis Joplin, just because been by the scope of poverty and drug in the judiciary or in the legal profession, she was courageous and didn’t care what abuse in the state. But she said she also generally, most of the judges noted that other people thought. enjoys learning about so many fascinating they have not experienced much on the Judge Toor worked at a Ben & Jer- facets of life, like really learning about milk- bench. When reacting to a quoted study ry’s scoop shop between college and law ing machines or bridge supports from peo- that showed that women judges are inter- school. Environmental law inspired her, as ple who live and love those things. Most rupted more and have their names mixed well as her desire to leave New York and of the judges remarked that being a judge up more than their male counterparts, Jus- come back to Vermont. Surrounded by is fairly isolating, at times, but noted that tice Skoglund did laugh, noting that she is male judges in federal court in New York, their families and non-lawyer friends keep called Justice Johnson all the time! Judge it was when a 44-year old woman was ap- them from being too lonely. While they all Toor noted that she’s had pro se litigants pointed to the federal bench that she sud- have judicial colleagues to bounce ideas inappropriately say she was beautiful dur- denly was able to picture herself in that off of, most remarked that they were sur- ing hearings, but that the attorneys have role. When Justice Robinson was appoint- prised how little that happens compared all treated her with respect on the bench. ed to the Vermont Supreme Court, with- to the time spent researching and drafting Regarding sexism, the judges were opti- out prior judicial experience, she recalls a alone. mistic that most of the egregious behavior friend reminding her that she had plenty When asked what advice they would give they’ve experienced is in the past, perhaps of experience being on the bench in Indi- to younger attorneys, Judge Toor realized by virtue of being on the bench or perhaps ana, for high school basketball! She always how much being a judge necessitates that because times have changed. Not want- thought she wanted to be a teacher, but it you stop worrying what other people think ing to dredge up too many old memories, was during her senior year in college that of you. Her advice would be to start now Justice Skoglund just gave one example of she decided to go to law school. Justice and not worry about what others think. when a male attorney, rather than compli- Robinson loved the intellectual challenge Judge Reiss wants young female lawyers menting her on her excellent advocacy at a and loved the work she ultimately did at to realize their high value to their firms, in hearing, asked her why she wasn’t wearing Langrock, Sperry & Wool. marketing, in quality work, in diversity, and heels (she was 8 months pregnant!). Judge www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2018 2 5 Toor recalled being asked to get coffee many times. And Justice Robinson recount- ed a story where she was second chair on a big case, with multiple depositions, and when showing up for another deposition, on time, with her large bag, she sat waiting for quite a while before the other lawyer
Women in the Judiciary Women remarked that he guessed the other law- yer wasn’t going to show up. He assumed she was the court reporter. Justice Robin- son did note that she owes much of being in her position at the Court, being grant- ed equal respect, and even being allowed to wear pants, to the trailblazers who came before her. The audience did ask about implicit bias training, and the judges remarked about how they’ve taken some of the tests and re- ceived some training. Just having the con- versation raises awareness, as does having diversity around you, as Justice Robinson noted. Overall, the presentation was ex- tremely optimistic and inspiring. While we often speak of the aging bar in Vermont, and nationally, the room was full of youth and energy, as so many young attorneys soaked in the real and down-to-earth per- spectives of these truly inspirational wom- en in powerful positions. Before closing and heading into the cocktail reception, VBA President-Elect, Beth Novotny, made a pitch for the next in- stallment of our implicit bias CLE series, to be a plenary session at our Mid-Year meet- ing at Lake Morey Resort in March. The general implicit bias overview at our An- nual Meeting received our highest remarks and compliments. Not only do we intend to continue the implicit bias training at our meetings, the Women’s Division was in- spired by this event to host more panel dis- cussions in the future. Also, in the Spring, please watch your inboxes for an impor- tant gender survey from the VBA, similar to what is being done in other states. And, as always, we welcome article submissions for the VBA Journal. We want to keep the con- versation (and the comradery) going! ______Jennifer Emens-Butler, Esq. is the Edu- cation and Communication Director at the Vermont Bar Association. ______1 Seven Days, Lady Justices: Four Vermont Judges Talk Law, Fairness and Being Female, by Mark Davis, Chelsea Edgar and Ken Picard, December 12, 2018. https://www.sevendaysvt. com/vermont/lady-justices-four-vermont- judges-talk-law-fairness-and-being-female/ Content?oid=24114749
26 THE VERMONT BAR JOURNAL • WINTER 2018 www.vtbar.org by Jesse D. Bugbee, Esq. Vermont Bar Foundation Grantee Spotlight: Association of Africans Living in Vermont, Inc.
This is another in a series of articles high- lighting organizations that receive grants from the Vermont Bar Foundation. In this series we shine the spotlight on grant re- cipients that make a difference in our state, that further the goal of the VBF to make the ideal of equal access to justice a reality. As readers may know, the interest from our IOLTA accounts is channeled through the VBF in the form of grant awards to orga- nizations and groups that assist Vermont- ers who otherwise would lack the means to participate meaningfully in our legal sys- tem. In this issue we illuminate the work of a unique organization whose mission is par- ticularly timely. Imagine you are newly arrived in a strange land with a language, customs and climate that are all alien to you. Imagine further that you came to this place to es- cape hunger, violence and oppression, with little more than the clothes on your back. To whom would you turn for help in navi- gating this new life? How would you even begin to overcome the many cultural, eco- nomic and legal barriers that await you? Thankfully, there are resources available ment populations in Vermont. Besides the The Department of Justice provides fund- here in our state, both governmental and entire continent of Africa, the countries of ing to assist women who have been victims non-governmental. Foremost among the origin of AALV clients now span Asia, East- of sexual abuse in their home countries as latter is an organization whose impact has ern Europe, South and Central America well as here in the U.S. A grant from the been felt widely within our immigrant com- and the Middle East. Vermont Department of Children and Fam- munity, the Association of Africans Living in The Executive Director of AALV is Ya- ilies is targeted towards keeping young Vermont, Inc. (“AALV”). couba Jacob Bogre, himself an immigrant, men out of the criminal justice system by The AALV occupies the third floor of a whose passion for this work is immediately providing training and mentoring pro- former Catholic school at 20 Allen Street evident. In a former classroom that now grams. The overall objective of the organi- in Burlington, Vermont. Originally, AALV serves as a conference area, he explained zation is to help people become fully func- was organized to assist ethnic Bantus that the myriad of services that the organization tioning members of society. This requires had fled war-torn Somalia. Burlington had provides. Many, but not all, of their clients a multi-disciplinary approach that encom- been selected as one of several resettle- are refugees, whose needs are most acute. passes a range of programs to provide sup- ment destinations after the Bantu refugees Mr. Bogre’s primary goal is to help these port and counselling to help them achieve had been classified as a priority by the U.S. new Americans achieve independence by that goal. Department of State. Many had fled to the providing services such as case manage- While the need for the full panoply of neighboring country of Kenya, but condi- ment to integrate the many resources that AALV services is painfully obvious in the tions there were little better than what they are available to them; workforce develop- current political climate, our attention at had left. Given the wide cultural and eco- ment to replace skills that may not be trans- the VBF is focused on legal services. Dur- nomic gulf between their homeland and ferrable to the U.S. labor market; behavior- ing the 2017-18 grant year, AALV provided their new homes here in America, these al health services to help cope with their legal assistance to 758 individuals from 59 people needed help, and organizations like new surroundings; and interpreter services. countries. Michele Jenness is the Legal Ser- AALV were created to fill that need. His staff is, by necessity, both multicultural vices Coordinator for AALV. Her caseload Now, the name of the organization can and multilingual. is entirely humanitarian; meaning she con- be misleading, because their mission has There are other financial resources avail- centrates on services for those seeking asy- since expanded to provide similar assis- able to AALV, such as a grant from Home- lum, immigrants who are in the criminal jus- tance to refugees beyond Africa and from land Security to provide assistance with cit- tice system, women dealing with domestic all around the globe. Most recently, they izenship status and instruction. Another is violence, family reunification for refugees have seen a dramatic increase in the num- a grant from the Department of Labor to and other similar issues. They are not in- ber of Bhutanese immigrants from Nepal. provide employment training. That pro- volved with business or student visas. Ms. In fact, Bhutanese have now surpassed gram has been particularly successful, and Jenness is fully accredited by the U.S. De- Vietnamese as one of the largest resettle- has enjoyed a 100% job placement rate. partment of Justice to represent clients be- www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2018 2 7 fore the Immigration Court and the Board consults with immigrants and their attor- Soon after NA returned to the U.S., AALV of Immigration Appeals. She is assisted in neys to mitigate those consequences. That staff filed an I-130 Petition for Alien Rela- her work by Rita Neopaney, who is partially work can include accompanying clients to tive for his son. However, the waiting pe- accredited, and is able to represent clients their hearings and attorney conferenc- riod for a minor child of a permanent resi- in their cases before United States Citizen- es and work on post-conviction relief with dent is at least two years and was too long ship and Immigration Services. the Prisoners’ Rights’ Office. Ms. Jenness for the family to endure. Meanwhile, NA’s Most of Ms. Jenness’s clients come from points out that such collaborative efforts wife and child had finally been approved to VBF Grantee Spotlight Chittenden County, which, as one might are critical because what might have been come to the U.S. and there were no oth- expect, is the most racially and ethnical- a ‘safe’ plea, for purposes of immigration er relatives to care for the youngest child ly diverse area in Vermont. On occasion, may now put the individual in jeopardy. if left behind. she works with people from other coun- Advocacy work is another one of Ms. AALV staff then filed for advanced parole ties such as Bennington, Washington and Jenness’s responsibilities. AALV has for the child based on urgent humanitarian Windsor. She often works closely with the formed a coalition with Vermont Legal Aid, reasons and requested that it be done in South Royalton Legal Clinic, and they re- federal public defenders, the ACLU and an expedited manner. Working with Sena- fer cases to each other. One crucial aspect the South Royalton Legal Clinic to address tor Leahy’s office, NA’s son was granted pa- of her work is helping those seeking asy- issues such as public benefit eligibility, ed- role into the U.S. one month later, lightning lum. As was stated in the AALV’s most re- ucation through public forums and guard- speed for USCIS. This meant that NA’s cent grant report: “under the Trump ad- ianships for the children of undocument- family arrived together in Vermont. The ministration, all forms of immigration are ed residents. AALV also focuses on men- child’s parole is for a period of two years being deliberately restricted or eliminated tal health issues, which can lead to interac- in which time the visa will become current and subjected to unprecedented scrutiny tions with the criminal justice system. The and the child can apply for permanent resi- and intentional bias. In a time when immi- organization works with the Psychiatry De- dence in his own right. grant rights are constantly besieged, it is partment of the UVM Medical Center and You can discover more about the AALV critical to provide knowledgeable and sup- Howard Mental Health Services to assist by visiting their website at: https://www. portive legal services.” Once one is grant- people dealing with the kinds of trauma aalv-vt.org. We invite you to also visit the ed asylum, the need shifts to working on that refugees frequently encounter. VBF website at: https://vtbarfoundation. bringing his or her family into the country. An example of the work undertaken by org, where you can learn about other grant Along this line, the report disclosed that the AALV is a client to whom we shall refer recipients. While you are there, please “[l]egal representation was provided to as “NA” (the following is an excerpt from consider a making a donation. The VBF is 104 individuals. These were cases of fam- an AALV grant report). YOU, and we need your support. ily reunification which are complicated and NA originally entered the U.S. as a So- ______lengthy, and adjustment and naturalization mali refugee in August of 2013. He filed Jesse D. Bugbee, Esq. is a shareholder cases where there were criminal issues.” an I-730 Refugee/Asylee Relative appli- with the firm of Kissane Associates in St. Aside from the South Royalton Legal Clin- cation on behalf of his wife and daughter Albans, and is a past president of the Ver- ic, there are no other pro-bono legal ser- which was approved in April, 2015. Then mont Bar Foundation. vices available to provide such assistance. the mother and child awaited consular pro- This is a need to which our Bar could easily cessing in Kenya. Suffering from their ab- respond. Ms. Jenness advises that training sence, NA returned to Dadaab Refugee can be provided in this area if attorneys are Camp to visit his family. While there, a son interested. was conceived and then born in May of Criminal convictions can have severe im- 2017. Because NA was not yet a U.S. citi- migration consequences, and may lead to zen, which would have conferred the same deportation, exclusion from admission to status to his child, he had to petition for the U.S. or denial of naturalization. AALV his baby.
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28 THE VERMONT BAR JOURNAL • WINTER 2018 www.vtbar.org 2 9 Jill Rudge 2018-2020 Poverty Law Fellow
Selected from a pool of over 60 young lawyers, we are proud to welcome Jill Rudge as our 2018 Poverty Law Fellow. Vermont Legal Aid will host Jill’s two-year fellowship, with a focus on housing-relat- ed problems experienced by low income clients with mental health issues, rang- ing from eviction and access to subsidized housing, to the lack of supportive services that allow people to remain successfully housed. Jill has just completed an Immigrant Justice Corps Fellowship at Sanctuary for Families in New York, where she represent- ed survivors of domestic and gender vio- lence facing serious immigration-related le- gal problems. Jill is a 2016 cum laude graduate of Brooklyn Law School, where she worked with a wide range of public interest orga- nizations including the Resilience Advo- cacy Project, Children’s Rights, The Legal Aid Society, Atlas: Developing Immigrant Youth, Brooklyn Defender Services, the Im- migrant Defense Project, and the Safe Har- Prior to law school, Jill lived and worked B.A. summa cum laude in Anthropology bor Project Clinic. She received the Spar- in Costa Rica, Australia, the Philippines, from George Washington University. Jill’s er, BLSPI, and Squire Patton Boggs Fellow- and Timor-Leste. She has focused on indig- family is Cuban-American from South Flor- ships in recognition of her commitment to enous policy reform, sustainable economic ida and Brooklyn, and she speaks Spanish. public interest lawyering. She was also the development, and election-monitoring ef- Notes and Comments Editor of the Brook- forts with both government and non-gov- lyn Journal of International Law. ernment organizations. She received her
We hope you will add the Access to Justice Campaign to your charitable giving.
The Campaign provides a singular opportunity to do the right thing by supporting a system of justice that is available to all.
To make your donation online please visit: https://vtbarfoundation.org or mail a check to: Vermont Bar Foundation, PO Box 1170, Montpelier VT 05601-1170.
WANTED: LEGAL FICTION
Fancy yourself a fiction writer? The next Grisham? The Vermont Bar Journal is not just for scholarly legal dissertations! Call it a fiction contest or an active solicitation for your works of fiction, either way, if we love it, we may print it!
Submit your brief works of legal fiction (6,000 words or less) to [email protected]. Our next deadline is March 1, 2019.
30 THE VERMONT BAR JOURNAL • WINTER 2018 www.vtbar.org
by Norman Woolworth Casemaker4: New and Improved, Yet Reassuringly Familiar
(Editor’s Note: At the time this article ing and database clustering technologies,” In designing the new platform’s user in- was written, Casemaker4 was still in beta McCade said. “And then, along with hard- terface, much thought was put into mak- testing. As a result, it is possible that fea- ware improvements, we’ve invested in our ing the user experience not only more in- tures described or shown may have been server operating system, and database and tuitive, but also more efficient. To that end, modified slightly in the final version of the search engine software. The result is faster notable enhancements include: new platform’s release.) response time and greater platform stabil- ity.” In January, Vermont Bar Association members will be introduced to Casemak- er4, the next generation legal research platform from Casemaker. In creating Casemaker4, to which VBA members will have free access, the Case- maker development team was presented with two overarching imperatives: • On the one hand, improve search speed, modernize the interface to en- able more intuitive site navigation, and upgrade design responsiveness to better accommodate mobile devices; • On the other hand, retain features and design elements that loyal Casemak- er users value and trust, and minimize changes with the potential to disori- ent. • Moving the main navigation to the is navigated, so that searching on just Put another way: Make it new. Make it header area so there is no longer a the content you are browsing remains better. But avoid change for change’s sake. need to return to the home page. the default. “The history of platform re-designs • Enabling a search of anything from • Adding time-saving options to the across various industries is littered with ex- anywhere by including the jurisdic- Search Input box, including “Recent amples of solutions in search of problems,” tion selection menu on every page. In Searches,” “Search Tips,” “Advanced said Dan McCade, Casemaker’s Chief Infor- concert, the system automatically up- Search,” and predictive “Type Ahead” mation Officer. “We were very conscious dates the search jurisdiction as the site functionality. (see below) throughout the development process of only adding features that would matter to our users, and of not throwing out the baby with the bath water, so to speak.” Guided by several years of user feed- back and incorporating refinements sug- gested through an extensive beta testing process, the team managed to achieve the desired balance, producing a new and im- proved platform that remains, nonetheless, reassuringly familiar. Casemaker4 features a clean and unclut- tered layout, with all of the features VBA members previously enjoyed, along with faster search speeds, better search filter tools, and new functionality such as type ahead searching. It is both W3C and ADA compliant and includes a much more re- • Adding Casemaker Digest (daily sum- ers to be notified of any new develop- sponsive design for enhanced display on maries of leading cases), Casemak- ments pertinent to a predefined topic smaller devices. er Libra (eBooks), CiteCheck and CLE based on a saved search or list of pri- Not every change to the new platform Events to the main navigation for eas- mary sources. is visible to users. As McCade explained, ier access, as well as the inclusion of • Incorporating intelligent algorithms to Casemaker invested in significant “back links to Libra citing references where suggest related primary and second- end” enhancements. applicable. ary materials not previously displayed. “We have upgraded our load balanc- • A new Alerts feature that allows us- • And much more!
32 THE VERMONT BAR JOURNAL • WINTER 2018 www.vtbar.org What’s not changing? The expert care by Mark Bassingthwaighte, Esq. and handling of legal content by editorial staff that has long distinguished Casemak-
Casemaker4 er among low cost legal research provid- Yes, Sometimes a Referral ers, who tend to rely more heavily on al- gorithmic approaches to capturing and or- Can Come Back to Haunt You ganizing legal content, with comparatively little to no human intervention. In a study circulated at last summer’s An- Lawyers make referrals. It’s something that be up front with the client about the ar- nual Meeting of the American Association comes with the territory. For some, making rangement. Remember, when you share fees of Law Libraries, entitled “Database Eval- a referral is almost a daily occurrence. They you share liability. Rule 1.5 of the Model uation: Drawing the Silken Thread,” three are often made after work is declined. Staff Rules of Professional Conduct states that a highly respected Connecticut law librarians may make them in response to a cold call division of a fee can only occur if the division set out to objectively evaluate seven legal or give one to a client who needs a service is in proportion to the services performed research services by researching six topics.1 that the firm doesn’t provide. Referrals are and the client agrees in writing. In addition, They performed identical searches on each sometimes made during dinner conversa- the fee must be reasonable and each lawyer service, and then assessed each result set tions, at social events, or after a presentation will assume joint responsibility for the repre- against five pre-determined criteria. given to the general public. Names may be sentation. This rule clearly requires that a re- The study showed that Casemaker con- passed along to family members, friends, a ferring attorney who will be accepting a re- sistently returned more relevant results colleague, and to good clients. After all, we ferral fee inform the client of the presence of than other low-cost services, that its con- do want to make sure our good clients are the referral fee and obtain written consent tent was more current, and that its citator, well taken care of! Too often however, refer- to the fee division. Given all this, it would CaseCheck+®, was more precise and less rals seem to be made without any thought of seem to be prudent to stay in contact with cumbersome to use than other providers’ the potential malpractice exposure. Is such the other attorney in order to monitor criti- citation checking tools. In fact, Casemaker casualness justifiable? Unfortunately, the an- cal dates and see that work is completed on performed on par with (and in some cases swer is sometimes no. time because there is no free lunch here. even surpassed) the leading high-cost ser- Nationwide, malpractice coverage statis- Two side notes are in order. First, prior to vices across multiple points of comparison. tics vary geographically and over time due ever making a referral where a referral fee is As Casemaker Chief Operating Officer to any number of reasons. Some lawyers do expected, consider making certain that the Sarah Gorman said at the time, “These re- not feel that malpractice coverage is neces- attorney you are referring to has malpractice sults are truly gratifying. Our editors take sary. They prefer to protect their assets in insurance in place and that the limits are ad- great pride in their work and here we can other ways. Others simply can’t afford the equate for the size of the matter being re- see that the human touch really does make coverage, particularly during economic hard ferred. Do not accept verbal verification of a difference.” times. I have even had a few lawyers tell me coverage. There are attorneys who will say Soon, as a VBA member, you can have that they believe having malpractice cover- they are insured in order to obtain the busi- the best of both worlds: a much-improved age simply invites claims. As they see it, if ness. Ask the other attorney for a copy of platform with state-of-the-art functional- they have no insurance no one will bother the declaration page to the malpractice pol- ity, and content you can continue to rely on suing them. Regardless, this is a roundabout icy prior to ever making this kind of referral. with confidence. way of sharing that contrary to popular be- Second, occasionally an attorney who has ______lief not all lawyers are insured for malprac- recently been disbarred will seek to refer cli- Norman Woolworth joined Casemaker tice. In fact, in a few states the percentage ents and request a referral fee. If the refer- as Director of Marketing in the Spring of of uncovered lawyers has been estimated ral happened to be made while this attorney 2018. He is a seasoned veteran of the on- to be as high as 50%. This reality begs the was in good standing with the bar, payment line legal research industry, having served question of what would happen if a lawyer of the referral fee would be acceptable. If in a variety of marketing leadership and made a referral to another lawyer who was this attorney is seeking to make the referral general management roles during a nearly uninsured and that lawyer eventually made and asking for a fee after being disbarred, 20-year career at LexisNexis, most recently a mistake? Might the referring lawyer be ex- the payment of a referral fee would be pro- as the head of the company’s Federal Gov- posed? You bet. There are ways that liability hibited under Model Rule 5.4(a) which pro- ernment market segment. ______can be found. It’s a hunt for a deep pocket hibits the sharing of fees with a non-attor- 1 The full study may be found at http://casemakerle- and it will be framed as negligent referral. ney. gal.com/pdf/public/database-comparision.pdf. The good news is that avoiding this type of That said, acceptance of a referral fee claim is relatively easy. is not the only method of creating a liabil- The most dangerous type of referral is one ity from a referral. Referrals to specific law- that results in a referral fee and it doesn’t yers or a referral made with a promise such matter if the fee was expected or simply of- as “Attorney X is the finest personal inju- fered as a gift. Acceptance of the fee can ry plaintiff attorney in the area and always and will bring to the referring attorney lia- gets great results” can also create liabili- bility for the other attorney’s work. If a fee ty. To avoid exposure for a negligent refer- is offered, the best advice is to decline it or ral claim, the rules are simple. When refer- suggest that the referral fee be refunded to ring anyone to another lawyer always pro- the client because referral fees are too eas- vide a minimum of three names and make ily viewed by the client as payment for legal no promises. Of course, suggesting the indi- advice to have them work with the other at- vidual contact your state bar referral service torney. would be another very safe practice. If your practice is to accept referral fees, Sometimes, however, we do wish to make proceed fully aware of the risk involved and a specific referral if for no other reason than www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2018 33 to see that a good client is properly tak- sual conversation following a public presen- claims can be costly. Given that the ac- en care of. If negligent referral claims are a tation, on a chat site, or in response to an in- tions that can be taken to avoid this type of concern for you, consider documenting ad- quiry over the phone. claim are highly effective and quite minimal, equate malpractice coverage by asking the The next issue concerns staff. Occasional- there really is no reason not to take the pru- other lawyer for a copy of the declarations ly a firm will have a sound referral policy in dent course of action and follow the advice page to her malpractice policy prior to mak- place that all attorneys understand and fol- shared here. ing a specific referral. Why? It’s because one low yet a staff member may be completely ______shouldn’t run with assumptions. Negligent unaware of the reason the policy is in place ALPS Risk Manager Mark Bassingth- referral claims are about coverage, not com- and thus not follow the rules in every in- waighte, Esq. has conducted over 1,000 law petency. Competent lawyers can and some- stance. There is no ill will here, just an honest firm risk management assessment visits, pre- times do make a mistake or miss a deadline desire to try and see that clients get the best sented numerous continuing legal education and again, not all lawyers are insured. help possible. Their motivation is to provide seminars throughout the United States, and One other type of attorney referral that good service. This staff person will make a written extensively on risk management and can potentially create a serious problem is specific referral to an attorney or other pro- technology. Check out Mark’s recent semi- the referral made to an officemate in an of- fessional whom they know and think highly nars to assist you with your solo practice by fice-sharing situation. By their very nature of- of blissfully unaware of the associated risks. visiting our on-demand CLE library at alps. fice sharing arrangements create added vi- For clients who are upset, staff may even try inreachce.com. Mark can be contacted at: carious liability for every lawyer in the space. to reassure them by making certain “harm- [email protected]. Yes, Sometimes a Referral Can Come Back to Haunt You Yes, A simple referral to an officemate just in- less” promises about the receiving attorney. Disclaimer: ALPS presents this publication creases the difficulty of avoiding this liability “Attorney X is a very good attorney and well or document as general information only. should a claim ever arise. In this situation it respected by our firm.” If attorney X miss- While ALPS strives to provide accurate infor- is particularly important to give a minimum es a statute date and is uninsured or under- mation, ALPS expressly disclaims any guar- of three names. It is fine to include an office- insured, the client may not agree with the antee or assurance that this publication or mate in this list. Just be certain to disclose statement that attorney X is a good lawyer document is complete or accurate. There- that one of the names provided is an attor- and they may want to hold the firm liable for fore, in providing this publication or docu- ney in the suite, make no promises about their loss. ment, ALPS expressly disclaims any warranty the suitemate, and be certain that the client Make certain that all staff understand your of any kind, whether express or implied, in- understands that this attorney is complete- firm’s policy and procedure for referrals and cluding, but not limited to, the implied war- ly independent. It would also be advisable also the reasons why such a policy is in place. ranties of merchantability, fitness for a par- to document how this referral was made in Develop a referral list with three names for ticular purpose, or non-infringement. some fashion. Finally, never make a referral the various types of matters the firm will re- Further, by making this publication or to an officemate who is uninsured or under- fer out and make it available to everyone in document available, ALPS is not rendering insured. This risk simply isn’t worth it. the office. If this list doesn’t cover a referral legal or other professional advice or servic- Now here is the interesting twist to the is- request, have the staff pass the matter on es and this publication or document should sue of negligent referral. Many referrals are to one of the attorneys, politely decline by not be relied upon as a substitute for such made for non-clients. A lawyer’s duties to stating the firm does not make referrals, or legal or other professional advice or servic- non-clients are minimal and thus negligent have staff refer to the state or local bar re- es. ALPS warns that this publication or docu- referral claims arising out of such referrals ferral line. ment should not be used or relied upon as a are few and far between. The real concern Last but not least, an often overlooked basis for any decision or action that may af- is when an attorney refers a client to anoth- source of potential liability for negligent re- fect your professional practice, business or er attorney or, perhaps more frequently, to ferral claims may come from links on your personal affairs. Instead, ALPS highly recom- another professional. Making matters worse, firm’s website. If there are links to other mends that you consult an attorney or oth- words of assurance are also often shared sites, an appropriate external links disclaimer er professional before making any decisions with the client in this situation perhaps as a should be prominently displayed near these regarding the subject matter of this publi- way to make sure the client follows through. links. The disclaimer should simply state that cation or document. ALPS Corporation and To underscore this concern, consider an es- the firm has provided these links for the con- its subsidiaries, affiliates and related entities tate planner who regularly refers clients to venience of users of the site and that these shall not be responsible for any loss or dam- the same CPA and is surprised to learn, af- links do not constitute an endorsement of age sustained by any person who uses or re- ter the CPA has made an error, the CPA has the linked websites, or of the information, lies upon the publication or document pre- no errors and omissions coverage. The cli- products, or services contained therein. sented herein. ent, now harmed, may very well look to the In reality, negligent referral claims are not estate planning lawyer for a recovery based a significant problem for malpractice carri- upon her legal advice to work with that par- ers. Yet when they arise, and they do, these ticular CPA. Here, following the above ad- vice becomes even more important. The same rules should apply whenever making a referral to an existing client. Always provide a minimum of three names, make no prom- ises, and verify that an errors and omissions policy is in place if a specific referral is pre- ferred. Remember that these rules not only ap- ply to referrals made after work is declined. They also apply to referrals made at a dinner party, in an e-mail to a friend, in response to an e-mail from someone contacting you as a result of a visit to your firm’s website, in a ca-
34 THE VERMONT BAR JOURNAL • WINTER 2018 www.vtbar.org BOOK REVIEW
v. Rodridguez, the U.S. Supreme Court re- the eugenics movement after World War II jected a federal Equal Protection Clause and the horrors of the Holocaust that com- challenge to Texas’s system for financing pelled sterilization statutes fell into disuse public education, which resulted in dramat- and were eventually repealed or abrogated ic disparities between rich and poor dis- by new anti-discrimination laws. tricts.1 Following the defeat in Rodriguez, And finally, in the area of freedom of however, advocates in Texas and elsewhere speech and religion, Sutton explains how began challenging school funding systems state constitutional decisions can directly based on state constitutional guarantees. lead to reconsideration of a federal consti- These provisions—unlike the federal con- tutional question. In Minersville School Dis- stitution—specifically addressed educa- trict v. Gobitis, the U.S. Supreme Court re- tion. In many instances, including in Ver- jected the First Amendment challenge of mont, these lawsuits were successful.2 two Jehovah’s Witness children to being In the search and seizure context, the required, at the penalty of expulsion, to sa- story is more complicated. Sutton de- lute the flag during the daily pledge of al- scribes how state constitutional deci- legiance at their public school.9 Following 51 Imperfect Solutions: sions anticipated Mapp v. Ohio, which re- Gobitis, and in the wake of a national wave States and the Making of quired state criminal courts to exclude evi- of violence against Witnesses prompted by American Constitutional Law dence obtained in violation of the Fourth the decision, numerous state courts sus- By Jeffrey S. Dutton Amendment to the U.S. Constitution.3 But tained challenges to compelled salutes (Oxford Univ. Press 2018) imposing a one-size-fits-all solution on all under their state constitutions. Then, less Reviewed by Benjamin D. Battles, Esq. 50 states under the federal constitution than four years after Gobitis, the U.S. Su- prompted a significant backlash, which ar- preme Court reversed itself in West Vir- Jeffrey Sutton’s book 51 Imperfect Solu- guably led the U.S. Supreme Court to later ginia State Board of Education v. Barnette tions is an excellent case study of an under- create exceptions to the exclusionary rule.4 and found a First Amendment right not to appreciated part of American federalism— Although many states declined to adopt salute the flag.10 Drawing heavily (without state constitutions. Sutton is a judge on the these exceptions as a matter of state con- attribution) on the themes of the interven- U.S. Court of Appeals for the Sixth Circuit stitutional law,5 the federal exclusionary ing state court cases, the Court per Justice and a former state solicitor of Ohio. In just rule was nonetheless weakened. With the Robert Jackson declared that “[i]f there is over 200 pages, he draws on these experi- benefit of this history, Sutton asks wheth- any fixed star in our constitutional constel- ences and his own research to persuasively er criminal defendants would have great- lation, it is that no official, high or petty, can demonstrate the critical role of state con- er protections today if Mapp had not been prescribe what shall be orthodox in poli- stitutions in defining and protecting indi- decided and the law had continued to de- tics, nationalism, religion, or other matters vidual rights. velop incrementally. of opinion or force citizens to confess by Sutton’s main thesis is that lawyers over- Sutton’s chapter on eugenics demon- word or act their faith therein.”11 look state constitutional claims at their own strates the danger of state courts blind- The story Sutton tells in this book fasci- peril. As he puts it, a lawyer preparing a ly following federal precedents to inter- nating and well worth reading if you are a constitutional claim or defense against pret their own constitutions. In the early lawyer or judge who handles cases involv- a state or local government is like a bas- 20th century, many states passed laws al- ing the government. And although Sutton ketball player at the free throw line in a tie lowing for the compelled sterilization of is generally thought of as a conservative game when the clock has run out. Like the individuals perceived to have undesirable judge—he clerked for Justice Scalia and player, the lawyer has two shots to win— hereditary traits such as “feebleminded- was appointed to the bench by President one under the federal constitution and one ness.” In well-reasoned opinions, several George W. Bush—his book is scholarly and under the state constitution. Why not take state courts blocked the enforcement of non-partisan.12 Focusing on the meaning the second shot? In Sutton’s view, failing to these laws on due process, equal protec- of state constitutions may help liberals in do so borders on malpractice. The client tion, and cruel and unusual punishment some cases and conservatives in others. wants to win and won’t care which sover- grounds. In Vermont, Governor Fletcher At the end of the day, however, all citizens eign’s law provides the victory. And what’s Allen vetoed a compulsory sterilization law benefit when the checks and balances of more (putting aside the basketball analo- based on the state attorney general’s opin- our federalist system are operating as in- gy), a state court interpreting its own con- ion that the law violated the state constitu- tended. State constitutions are a funda- stitution may be able to provide the cli- tion.6 In 1927, however, the U.S. Supreme mental part of the system, and 51 Imper- ent more complete and durable relief than Court upheld a Virginia law against a fed- fect Solutions is an important and timely re- would be available under the federal con- eral constitutional challenge and blithe- minder of that. stitution. ly declared—per Justice Oliver Wendell ______Sutton makes his case by examining four Holmes—that “three generations of im- Ben Battles is the Solicitor General at legal topics: school funding, search and beciles are enough.”7 Holmes’s decision the Vermont Attorney General’s Office. seizure, eugenics, and freedom of expres- in Buck v. Bell breathed new life into the ______sion. He draws different lessons from each. eugenics movement. More states passed 1 411 U.S. 1 (1973). With respect to school funding, Sutton sterilization laws. Vermont’s law was final- 2 See, e.g., Brigham v. State, 166 Vt. 246, explains how state constitutions were used ly enacted in 1931.8 And state courts fol- 692 A.2D 384 (1997). to create a right to equal funding that had lowed Buck’s reasoning even when inter- 3 367 U.S. 643 (1961). been rejected as a matter of federal law. preting their own constitutions. In the end, 4 See, e.g., United States v. Leon, 468 In San Antonio Independent School District it wasn’t until public opinion turned against U.S. 897 (1984) (refusing to exclude evi- www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2018 35 dence obtained in reasonable reliance on media/60110/1913FletcherS79.pdf. 66 (6th Cir. 2012) (Sutton, J., concurring). a search warrant subsequently found to 7 Buck v. Bell, 274 U.S. 200, 207 (1927). And in 2014, he wrote a majority opin- be invalid). The Vermont Supreme Court 8 1931 Acts & Resolves No. 174. ion upholding the gay marriage bans of has declined to incorporate Leon’s “good 9 310 U.S. 586 (1940). Michigan, Kentucky, Ohio, and Tennessee Book Review faith” exception 10 319 U.S. 624 (1943). against constitutional challenges, DeBoer 5 See, e.g., State v. Oakes, 157 Vt. 171, 11 Id. at 642. v. Snyder, 772 F.3d 388 (6th Cir. 2014), cre- 183, 598 A.2d 119, 126-27 (1991) (“We 12 In any event, Judge Sutton’s judicial re- ating a circuit split that paved the way for will not impose such a significant limitation cord is not easily categorized with a par- the U.S. Supreme Court’s review and de- upon our state exclusionary rule on the tisan label, as illustrated by his two most cision in Obergefell v. Hodges, 134 S. Ct. basis of the Court’s cost-benefit analysis well-known decisions. In 2011, he wrote a 2584 (2015). in Leon.”). concurring opinion explaining his vote to 6 See Governor Allen M. Fletcher, Veto uphold the Affordable Care Act against Message (S.79) (Jan. 31, 1913), avail- a constitutional challenge. Thomas More able at https://www.sec.state.vt.us/ Law Center v. Obama, 651 F.3d 529, 549-
IN MEMORIAM
Colin William Robinson Francis Bernard McCaffrey, Jr. Scott Skinner
Colin William Robinson, 62, passed away Francis Bernard McCaffrey, Jr., died on Scott Skinner, 76, passed away on Decem- in his home of 27 years in Lyme on Octo- October 27, 2018 at the age of 82 after a ber 15, 2018 from complications from lung ber 12, 2018 with his wife at his side. Born courageous three-year struggle with can- disease. He was born in Pennsylvania on in Greenwich, CT on November 19, 1955, cer. Rita, his wife of 60 years, was by his May 31, 1942, and was an active Boy Scout, Colin graduated in 1978 from UNH with side. Born in Queens, NY, Frank graduat- reaching the rank of Eagle Scout at 13, the a BS in Environmental Conservation. He ed from Chaminade High School in 1954 youngest Eagle Scout in PA at the time. received his JD from Franklin Pierce Law where he was an All NYC basketball play- Scott attended boarding school in New Center in 1991, marrying his wife, Mary er. He attended Saint Michael’s College, Jersey where he played football and bas- Lou that same year. Colin opened his own playing basketball on the famous team that ketball, and was the captain of the chess successful law practice in 1995 and spent made it to the Final Four in Indiana. Frank’s team, the editor-in-chief of the school’s time volunteering in the community, in- lifelong passion for basketball and his end- magazine and obtained top honors. He cluding teaching 5th graders about the law less hours of hoops with his children and received his BA from Dartmouth College and coaching mock trial competitions, and neighborhood, earned him an induction in just 3 years, majoring in history with splitting and delivering firewood to citi- into the Vermont and the NE Basketball high honors. After 2 years in Nepal with zens in need with “Those Guys Firewood Hall of Fame. Graduating from Fordham the Peace Corps, he obtained his JD from Crew” of Lyme. Colin used his time and Law School in 1961, he practiced in NYC, Columbia Law School in 1969. Scott mar- legal expertise to help the UNH women’s NH and Rutland, Vermont, until 1981 when ried Mary Just in 1970 and they moved to club hockey team gain recognition from he was sworn in as a Vermont State Court Montpelier in 1972 where he became the the University. He helped his mother man- Judge. He retired in 2004 as Administrative first ED of VPIRG. He was later the ED of age Camp Wulamat, providing a summer Judge, finding passion, using his empathy, the ACLU during the Island Pond raid case, camp community for generations to enjoy. wisdom and compassion, in presiding in and then joined Pat Biggam and Ron Fox Colin is survived by his wife and two chil- the Rutland Drug Treatment Court. Frank in Montpelier until he retired. Scott was dren, who continue to enjoy the outdoors had a strong commitment to his family and rumored to be the guiding force behind and hockey. his community and was a founding mem- the “Hunger Mountain Climb” in February, ber of Serenity House, a training teacher and was also known, along with his wife, of at the Thresholds Decisions Program and nearly 50 years, for their animals and ex- a guiding force at the four Dismas of Ver- ceptional garlic from their old farmhouse mont homes. He is survived by his wife, his in Middlesex. Scott and Mary climbed 68 2 daughters, 2 sons and 6 grandchildren. New England peaks over 4,000 feet to- gether and hiked and traveled with their two sons, including to Nepal and Peru. He is survived by Mary, their two sons and 2 grandchildren.
36 THE VERMONT BAR JOURNAL • WINTER 2018 www.vtbar.org Scenes from the Annual Meeting
www.vtbar.org THE VERMONT BAR JOURNAL • WINTER 2018 3 7 CLASSIFIEDS
INVESTIGATIVE SERVICES QDROs (qualified domestic SERVICES Surveillance, Background Checks, Lo- relations orders) cates, Statements, Witness Locates, Di- I prepare QDROs and other retirement BRIEFS & MEMORANDA. vorce, Child Custody. pay and pension benefit domestic relations Experienced attorney writes appellate Due Diligence, Asset Investigations, Pre- orders for federal, state, municipal, mili- briefs, trial memoranda. Legal writing/ap- Litigation Investigations. We cover the En- tary and private retirement plans as may pellate advocacy professor; author of four tire State of Vermont. be required by the terms of the settlement books. VT attorney since 1992. $60 per Veteran owned company serving all of agreement or the court’s final order. hour. Brian Porto, 674-9505. Vermont. Call 802-324-7385 or email: com- I handle all initial contacts with the plan [email protected] or third party administrator and provide all necessary processing directions when the order is ready for filing. Vermont family law attorney since 1986. Contact me for additional information and preparation rates. Tom Peairs, 1-802-498-4751. [email protected] www.vtqdro.com
38 THE VERMONT BAR JOURNAL • WINTER 2018 www.vtbar.org