Putting Laymen on the Bench

By Michael S. Serrill

Vermont supports a controversial system of citizen judges

Violent crime is relatively rare in bucolic, lightly populated Vermont. So when an assailant killed Chiropractor Peter Sophos with a rifle blast to the face last year in Barre, its 9,800 citizens were shocked. Sophos' 18-year-old neighbor, Gordon Hunt, was arrested for the murder the same day. Police said that Hunt told them, "I always wanted to shoot someone."

Despite the angry mood of the community, the prosecutor and defense attorney proposed a plea bargain to Judge James Morse, which he was ready to accept. The deal: if Hunt would plead guilty to second-degree murder, his sentence would be ten years to life, with the possibility of parole after six years and eight months.

But Jane Wheel, a former teacher, and Charles Delaney, a restaurant owner, overruled Morse and demanded that Hunt be tried for first-degree murder, a ruling now under appeal. Wheel and Delaney were exercising this legal authority in their roles as "assistant judges." Also known as side judges, these officials are ordinary citizens with no legal training who are elected to sit beside the state's law-trained superior court judges and share much of their judicial power. There are 28 of these citizen judges in Vermont, two in each of the state's 14 counties. They sit on both jury and nonjury cases and are elected for four-year terms.

Vermont is not the only state with nonlawyer judges. A 1979 study by the Institute of Judicial Administration and the National Center for State Courts found that there were some 14,000 such judges in 44 states. In every other state these lay judges are functionaries assigned to lowlevel courts, where dockets consist mostly of traffic offenses, minor civil suits and petty criminal offenses. Only in Vermont do lay judges exercise substantial authority in important cases.

The assistant judges, established by Vermont's 18th century constitution, are a remnant of the hostility toward lawyers that many of the original colonists brought with them from England. That mistrust persists to this day. Vermonters are fond of pointing out to strangers that in the Green Mountain State's peculiar twang, the word lawyer comes out sounding like "liar."

Over the past century, the organized bar in the U.S. has waged a relentless and effective campaign against lay judges. In Vermont, which is still governed by a part-time legislature where lawyers are in a minority, most efforts to curtail the assistant judges' power through legislation have failed.

Still, the legislature has not permitted side judges to sit in some kinds of civil cases, such as those involving taxes and the sale of real estate. In 1976, the Vermont Supreme Court ruled that it was a violation of defendants' right to due process for lay judges to rule on matters of law in criminal cases. Side judges, however, can still rule on questions of fact and sentencing (in an appeal to the Vermont Supreme Court, Gordon Hunt's attorney is currently challenging the side judges' right to interfere with plea bargaining).

In criminal proceedings, the superior courts have tended to hear only murder and kidnaping cases. Some assistant judges are upset with a 1982 law that allows prosecutors to take even those cases to district courts, where there are no assistant judges. Side Judge Wheel contends that "this is one place where the people's judges should sit, particularly for the sentencing of one human being who has taken the life of another."

Sentencing is a matter of great interest to many side judges. In Windsor County last year Louis Hamlin, a high school student, was convicted of murdering a twelve-year-old girl. Superior Court Judge Thomas Hayes, who described the proceedings as "the most controversial murder case in Vermont in a long, long time," would have sentenced Hamlin to 35 years. But his two assistant judges insisted on adding another ten years. Says one local court observer: "That made the assistant judges even more popular." (Hamlin is appealing the assistant judges' action.)

The law-trained superior court judges are well aware of the side judges' popularity. Says Judge John Meaker: "If it develops confidence in the judicial system, then it serves an important role." Some jurists are not convinced that they need any help from assistant judges. Chief Justice Franklin Billings of the state's supreme court thinks "their use as far as the law is concerned has been outdated." Says Montpelier Attorney Robert Kurrle: "Lay people are just not as sensitive as lawyers to questions of due process."

Family Law Attorney George Rice is convinced that litigants in domestic disputes feel more comfortable in the presence of "regular people without black robes." (Only presiding judges wear judicial gowns.)

When disputes arise between presiding judges and their assistants, they are settled in chambers. "Sometimes there are 2-to-1 votes, but often it is one of us voting with the presiding judge," says former Civil Servant and Side Judge Patricia Jensen.

The assistant judges, many of whom are retired or own businesses that do not require full-time supervision, are paid $51.50 for each day they are in court. In most counties they sit for no more than 90 days a year. In Washington County, which includes the state capital of Montpelier, side judges are paid an additional $175 a month for administrative work. That barely covers expenses for Assistant Judge Willis Bragg, a retired dairy farmer, who travels 25 miles each way every day from his home in Waitsfield. Bragg does it because he believes that ordinary people should have a voice in government. Says Bragg: "We are advocates for the citizens."

Vermonters are not likely to let anyone take Willis Bragg's job away. Says New York University Law Professor Linda Silberman, co-director of the 1979 study of lay judges: "The notion of abolishing the system in Vermont is like tearing down the American flag. It is a unique system, and it is going to remain." --By Michael S. Serrill. Reported by Richard Hornik/Montpelier

With reporting by Richard Hornik/Montpelier This file is automatically generated by a robot program, so viewer discretion is required.