The Vermont Constitution.
Imagine that you live in a state in which the Supreme Court Justices and other judges were not compliant with the state’s constitution, the very document they are sworn to protect, and thus are not legally serving on the bench?
Now, consider the ramifications of that. Should prior Supreme Court rulings be vacated because non-compliant appointees were illegally serving on the court? The result of trying to sort that bird’s nest out would be, well… a wee bit chaotic at best.
Could it actually happen? According to the Vermont Supreme Court, you bet. If you read the Green Mountain state’s Constitution and its requirements for the oath of office, that’s exactly the potential outcome for the state.
The only way around it is a Constitutional amendment that would need to be grandfathered in (made to be considered effective since the breach of constitutional compliance first began) to eliminate the word in the clause involved.
That part of the clause (the word “subscribe”) has been pretty much ignored, but as is the case with all constitutions, you can’t pick what you like and disregard the rest.
The Ethan Allen Institute (EAI), a superb Vermont think tank run by John McClaughry, first brought this issue to my attention. Among the few conservative voices drowned out by a cacophony of ever-more liberal and progressive shouts statewide, McClaughry’s is a quiet voice of intelligent reason to which we need to listen.
He was a Senior Policy Advisor in President Reagan's White House Office of Policy Development and member of the Vermont Senate, among a long list of other political pursuits and activities.
The EAI ran a story about constitutional non-compliance in which it cited the Constitution and two Supreme Court rulings that, though a tad dusty, have never been overturned, nor do they occupy irrelevant shelf space next to buggy whips. They are as relevant today as they were when some poor soul finished handwriting them.
The best place to start examining this thorny and potentially polarizing conundrum lies within the Vermont Constitution (see Web site listed at right), to wit:
“Chapter II, § 56. Oaths of allegiance and office
“Every officer, whether judicial, executive, or military, in authority under this State, before entering upon the execution of office, shall take and subscribe the following oath or affirmation of allegiance to this State, (unless the officer shall produce evidence that the officer has before taken the same) and also the following oath or affirmation of office, except military officers, and such as shall be exempted by the Legislature.”
Yeah, I know, it’s about as complex as the King James Version of the Bible without the “these” and “thous,” but the operative word here is “subscribe.”
As defined by Ballantine’s Law Dictionary, subscribe means: “To sign. To sanction.” In West's Encyclopedia of American Law, edition 2., subscribe is defined as: “1) to sign at the end of a document.”
It’s pretty clear what the constitutional stipulations are, and no matter how you try to spin “subscribe,” it means that an oath of office has to be signed. In other words, those officers listed must first take and then sign an oath.
The trouble is, Steve Mount, Webmaster and researcher for USConstitution.net, and a very bright guy, looked into the matter and was told by the State Archivist in the Secretary of State’s office (where oaths had traditionally been filed), that there were no records of any oaths recorded in the State Archives. Swell. What does that mean?
In a note on his Web site, Steve writes, “It is not known if that meant that the oaths were not recorded or if recorded oaths were misdirected and are in storage elsewhere. Regardless, oaths were administered, and to avoid confusion in the future, specific processes were put into place to ensure the oaths are recorded and stored in the Archives.”
Great news except for two things: At the time Steve talked to the Archivist, Justice John Dooley (wait; I’m saving him for last) was sitting on the bench, allegedly sans a signed oath, and; Steve implies in his statement that we need not concern ourselves with the “subscribe provision” because “oaths were administered.” Oaths administered aren’t necessarily oaths signed.
The two Vermont Supreme Court rulings mentioned above agree.
The first case was decided in 1859, according to the EAI, when Justice of the Peace Noah Powers issued an arrest warrant for one Clark Courser. Courser was arrested (for what we know not) and detained. But it turns out that, though appointed for a second term, Powers had failed to take the oath of office. Realizing that Courser had found out about that little omission, he immediately did so, but Courser sued on the grounds that the arrest warrant was invalid. He pointed out that at the time it was issued, Powers was not legally in office.
The Supreme Court, under Justice Luke Poland, unanimously agreed with Courser. In his decision, Poland wrote that a judicial officer “must show every thing done necessary not only to his legal election or appointment, but also to his legal induction into office.” He concluded, “no compliance, no office.”
The second case, this one involving taxes, came in 1879.
A gentleman named Russell, a tax collector, had collected $20 from a non-resident landowner. Victory School House Director, a gent named Houston, demanded that the $20 be paid to the town in question. Russell objected, and the case went to the Supreme Court, which affirmed the previous Supreme Court ruling.
In essence, because Houston (who thought he was an officer of the court, but wasn’t) had failed to take and subscribe an oath of office, he could not “establish his right to act as an officer,” according to the EAI.
The EAI points out that, “The constitutional requirement to take and subscribe to an oath (Chapter II, sec. 56) is not merely a suggestion. It is a mandate, and unless complied with, the person is not an officer of the state.” That’s obviously correct.
Fast forward to 1987, and here’s where we find Supreme Court Justice John Dooley, the man responsible for starting the Civil Unions juggernaut and the “Brigham” decision.
The latter was a case that mandated that the State Legislature devise a law that enabled the state to extort higher property taxes to fund state education from so-called “Gold Towns” (Manchester, Dorset, Killington, Stowe and others), than they did from poorer towns. The Gold Towns not only paid property taxes to fund local education, but also had to pay a state education property tax.
It was Robin Hood taxation, plain and simple and, under the U.S. Constitution, illegal under equal protection provisions (i.e., you can’t demand higher property taxes of one town over another just because rich people live in the first town); we’re all supposed to be treated as equal under the law. Besides, nationwide, 20% of the rich pay 80% of the taxes. If you don’t agree, look it up.
The ruling and subsequent legislation is also what caused the “secession movement” started by Killington, which wants to secede from Vermont to New Hampshire. Cynics claim that Killington’s secession declaration was the best marketing ploy ever. The story certainly burned its way through news channels and papers countrywide. But if you talk to a Killingtonian, you get, “Uh uh. Don’t go there.”
It’s irrelevant regardless. Both state legislatures would have to approve, and Vermont’s not about to let that sugar daddy off its gold leash. Nonetheless it’s still a nasty, festering boil in the Gold Towns, some of which saw property tax increases of 40%+. That’s another story I’ll write later. A lot of old-time Vermonters got badly stung in that deal.
According to the EAI, Dooley has not produced, and allegedly refuses to produce, any evidence that he either took the oath of office or subscribed to it, and has not contested the first claim (meaning he hasn’t complied).
As to the second, Dooley lackeys claim that it was, “someone else’s responsibility to see that the subscribed oath was properly deposited in the archives.” Hmmm. Don’t remember the Constitution specifying “someone else” being responsible for getting the document to where it needed to go. Whoever was responsible for its deliverance, it’s not there, according to the Archivist.
EAI concludes that, “…when a Justice of the Supreme Court takes an oath ‘not to do any act or thing injurious to the constitution’, and then, in the face of the plain language of the Constitution and the uncontested rulings of the Supreme Court, doesn’t even bother to subscribe and file his oath-taking document; and when for seven years that Justice refuses to respond to inquiries about whether he has complied, one has to wonder whether that Justice takes fidelity to the Constitution seriously. That is especially so when one reviews Justice Dooley’s performance on the bench.”
That last line is what has a lot of Vermonters seriously wrapped around the axle.
So, where does this leave Vermont? In the case of Dooley, unless he produces proof that he took the oath of office and signed it, at least his rulings could be vacated because he was never a Justice in the first place. The same applies to other non-compliant justices, judges, and justices of the peace, among others.
That means that if anyone wants to pursue this, and they should, the state and Supreme Court would have to analyze his votes and rulings (as well as those of anyone else who’s failed to comply—including criminal judges) in all of the cases he heard, and if a decision involving any of them does not result in a majority vote or a tie without his vote, it should be thrown out.
I can tell you that there would be Fourth of July celebrations in the Gold Towns if that happened. No, they couldn’t undue the laws the Legislature passed as a result of his Brigham ruling, but they could challenge the constitutionality of those laws in federal court. And they just might be rid of a Justice who leans so far to the left he makes uber liberal U.S. Senator Patrick Leahy (D-Vermont) look like a “Bushie.”
Further, Dooley over-stepped his authority by ordering the Legislature to come up with an unconstitutional law to fund education. That’s a no no. Under the concept of separation of powers and checks and balances principles within the U.S. and state Constitutions, there are three equal branches of government: Executive, Legislative and Judicial, and none can tell the other what to do.
But the Legislature didn’t have the guts to tell him where to put his ruling—I’d suggest right next to his signed oath. Regardless, it’s time for Dooley to put up or stand up, get sworn in, sign the oath and get it to the archives himself—even though his previous rulings could be vacated absent a constitutional amendment. If he continues to refuse to do so, then he should be impeached for “[doing] any act or thing injurious to the constitution,” which he is by refusing to prove he’s a legitimate justice.
John Dooley (I would normally respectfully precede the name with the title “Justice,” but he won’t prove he is one and it’s not in the Archives, so no compliance, no office), cough up your sworn and signed oath or take off your black robe and step down.
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