“They need to take their cuts like any other agency.” I’ve heard this sentiment many times since arriving at the Statehouse in January. We are in the midst of an acute budget crisis and searching for funds absolutely everywhere. Although I understand the feeling of desperation behind the opinion, the incontrovertible fact remains: Vermont’s judiciary is not an “agency” of the executive branch. It is the critical third branch of our government, and its role is vital. The judicial branch counterbalances the power of the executive branch, protects minority rights against majoritarian tyranny, and safeguards equal access to justice.
As a former history and civics teacher—and the child of an immigrant whose father was murdered in the Holocaust—I am sincerely troubled when average citizens do not understand the role of the courts. I feel even more concern when some of our elected officials do not grasp the fundamental division of governmental powers set forth in our state constitution.
During our legislative orientation, Vermont’s Supreme Court justices told new legislators about the many challenges Vermont’s court system faces due to chronic underfunding. I doubt Chief Justice Paul Reiber and Associate Justice John Dooley thought they’d need to explain the role of the courts to us.
In one uncomfortable moment, a newly elected legislator told a lengthy story about vandalism and theft in his hometown. Clearly exasperated, the representative interrogated the justices as to what they could do about it. Taken aback, Justice Dooley replied, “You do realize we’re the Supreme Court? We don’t arrest suspects. That’s the role of local law enforcement.”
Several minutes later another rep asked the justices whether they’d heard more 4th Amendment cases due to the expanded opiate drug trade in Vermont. Someone called out, unabashedly, “What’s the 4th Amendment?”
Now, I am not generally into “gotcha moments” related to civics or history facts, although admittedly they can amuse when we are at our basest selves. What troubles me is not simply that some elected officials do not know that the 4th Amendment deals with unreasonable search and seizures. This lack of knowledge—combined with a fundamental misunderstanding of the role of the courts and the erroneous notion that the judiciary is an executive agency— has me quite alarmed. I dread that we are headed for a constitutional crisis in Vermont. I am not alone.
Many within Vermont’s legal community fear that it is only a matter of time before the state is sued for violating a citizen’s right to access the courts for redress of wrongs. The heading of Article 4 of our state constitution is unequivocal: “Remedy at law secured to all”. We are all entitled to justice provided by courts “promptly and without delay”. But that’s not the experience of most folks who need our state’s court system.
For years we have asked our courts to do more and more with fewer and fewer resources. We have slashed budgets under the misleading title “vacancy savings”—the preposterous practice of “saving” money by not filling a judicial vacancy. The cases do not go away simply because there is no judge to hear them.
Now Vermont’s judiciary has been told to cut another ½ million dollars from its budget. This goes beyond the tipping point, folks. We are haplessly skidding towards the precipice that Chief Justice Warren Burger warned us about over four decades ago when he said that “to maintain the fabric of ordered liberty”, a free people must have a sense of confidence in the courts. Delay and inefficiency, he argued, drain away any faith we have—even in a just judgment. And the chilling end result is that average folks “come to believe the law…cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets.” A dire prediction indeed.