Judge Me

By Daniel Richardson

In re Hodgdon, 2011 VT 19

You have not made it in the practice of law in Vermont until you have a trial or hearing in Guildhall, Vermont—the county seat of Essex.  Perched atop the state, hard against Quebec and New Hampshire, Essex is a quiet, rugged, and defiantly rural spot where one can visualize the world primeval.  Guildhall lies along the Connecticut River when it is still a young stream, bouncing over its rocky bed toward its greater, southern glory.  The Town is not much more than a scattering of houses, a library, a sleepy general store, a cemetery, and courthouse buildings.  If you blink, you will have missed not only Guildhall but the next town as well. 

This is nothing new.  My partner relates a story about a multiple-day criminal trial held in the 19th century in Guildhall.  Each night, the parties—prosecution, defense, prisoner, and judge—would retire to the closest accommodations, which were across the river in Lancaster, New Hampshire.  After a few days of particularly damning testimony, the parties were heading back to Vermont after lunch at the hotel when Defendant stopped and refused to return.  With no authority in New Hampshire, the Vermont deputies holding the prisoner had to let him go, and the prosecution shifted to extradition proceedings. 

Essex is a place where tall tales still have room to breed and kings continue to reign, notwithstanding our more-enlightened times.  Today’s case concerns one of the last kings in the Kingdom, Allen Hodgdon.  Defendant Hodgdon is an entrepreneur who operates the town’s modest country store and most of the county’s government. 

From 1990 until last month, Defendant served as one of two assistant judges for Essex County.  This job, apart from its administrative duties, was limited to sitting as a finder of fact in civil bench trials, but since 1990, Defendant’s power steadily expanded to encompass small claims court, uncontested divorces, municipal citations, and traffic court, among other judicial powers.  This rise is attributable to many different reasons, which may depend on who you ask.  To some, Judge Hodgdon is a hero who has taken the court system back from lawyers and court administrators to provide fair, low-cost judicial services to a rural population that might be underserved or misrepresented in a strictly professional judiciary.  To some, he is simply a defiant anachronism, which costs state tax payers thousands each year to hold the judiciary hostage to one county’s need to recreate judicial services on the 19th-century model and scale. 

While the truth remains elusive and subjective, we can safely say that neither Defendant Hodgdon nor the judiciary will be “friending” each other anytime soon on Facebook. 

The problems leading to this public reprimand arose in 2006 when Defendant, who was serving as an elected assistant judge decided to expand his repertoire and run for probate judge.  The problem lies with the Vermont Canon of Judicial Conduct 5(A)(3).  This requires judges to resign from their office before pursuing elected office.  By running for a new office while maintaining his old office, Defendant ran directly afoul of this Canon and became subject to disciplinary proceedings. 

As a judicial disciplinary matter, this case went directly from the Judicial Conduct Board, which gathered evidence and made recommendations, to the SCOV.  Thus, the SCOV is the court of first impression here and is not bound by any of the decisions made the Judicial Conduct Board. 

The case has little in the way of factual disputes but focuses primarily on seeking an exception to the Canon for Defendant.  These run from broad constitutional challenges to more private legislation. 

As his first argument, Defendant urges the SCOV to find Canon 5 inapplicable to assistant judges in this context.  This argument had the same chance of success as the Hindenburg would have trying to ferry a smoker’s convention across the Atlantic.  It rests on the SCOV accepting that assistant judges have inherent probate powers and that they are somehow different from appointed judges in ethical obligations.  This may be true, but in decisions involving the discipline of assistant judges (there have been several), the SCOV has consistently followed a line of reasoning that may be summarized as “if you want to call yourself a judge, then you are going to have follow the rules of being a judge.” 

As an aside, I should point out that being a judge is no picnic.  Sure you get the snazzy ensemble, the gavel, and the power to decide the fates of others, but it is an isolating profession that requires its members to remove themselves from any number of entanglements and friendships that have, or could have, the appearance of impropriety.  The Vermont Canons of Judicial Conduct may very well be an anti-(social) life equation,

Assistant judges on the other hand, are elected officials.  They are, in many ways, the most powerful elected officials at the county level.  They have the authority to raise revenue, hire staff, maintain county property, and serve a constituency the same size and dimension as a state senator.  Apart from their judging duties, assistant judges are akin to country commissioners—a very powerful position in most states—and the disciplinary issues usually arise when one acts more like a political officer, tending to the needs of the citizens, than an impartial, but solitary, judge.

Defendant’s next argument meets a similar fate.  He suggests that the Canon’s restriction against an assistant judge running for probate judge is unconstitutional on federal and state levels for a violation of free speech and equal protection.  The SCOV slices through these arguments in elegant fashion.  The key concept here is a long-standing principle that individuals have no property interest in an elected office.  This means that elected officials have no specific rights or privileges to hold or speak from their office by virtue of running for or holding them.  This is an important principle that prevents “sore losers” from tying up government as they seek to litigate damages resulting from a campaign or election.  You can go to court to sort an election out, but you cannot sue because you unfairly lost your seat or because you lost your seat to unfair practices by others. 

Essentially, judges have no constitutional right to hold office, and a limitation on judges requiring them to leave a judicial office before seeking elected office does not violate any particular constitutional principle on either the state or federal level.  Furthermore, the need to remove judges from positions where they could influence elections in which they have a direct and personal stake is strong enough to trump any “right” Defendant or any other judge might have on equal-protection or free-speech grounds to hold judicial office while seeking another. 

As a final argument, Defendant suggests that a 2010 change to Vermont law, which now allows an assistant judge to run for probate judge, should be applied retroactively to his case.  The general rule is that legislation can only apply prospectively, which means if you are arrested for a crime and ten months later, the crime is repealed, you do not get out of jail.  You may resume your prior behavior after you get out, but you can still be prosecuted for what was a crime when it was committed.  There are exceptions to this rule, and the legislature can make a law explicitly so.  In this case, there was no such language, even though, as the SCOV notes, it was promulgated and passed through the legislature by Senator Illuzzi on behalf of his fellow Essexian. Too bad, but without retroactivity, the SCOV will not go there.

This leaves the final issue of punishment.  The Board had recommended 30 days suspension and resignation from one or the other offices.  Circumstances allow the SCOV to be more generous.  The SCOV notes that Defendant has not been accused or alleged to have committed any wrongful or improper behavior before, during, or after his campaign.  Defendant also has a lengthy record of public service that prior to the present case had been free of conduct violations.  But perhaps most importantly, Defendant did not run for re-election in 2010 as assistant judge, effectively mooting the resignation requirement as he was due to leave office approximately one week following the issuance of this decision.  Instead, the SCOV votes for a public reprimand, which is in essence the decision itself, which concludes that Defendant violated Canon 5 and should not do so again in the future. 

Not a hard call for the SCOV, but then every bit of kindness has its place.  Given the history here, safe money says we can expect similar decisions in the future as assistant judges continue to chafe in office against the judicial code of restraint.