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WTF: Can Vermont's Justices of the Peace Serve as Judges?


Published June 19, 2019 at 10:00 a.m.


For two decades, Jay Furr of Richmond worked a tech job that kept him on the road as many as 40 weeks per year. He was eager to do volunteer work, such as serving on the Richmond Selectboard, but his busy travel schedule made it virtually impossible.

"I'm a Vermonter, and Vermont is all about participatory citizen democracy," the 51-year-old said in a recent interview. "I've been here all these years, and I've never gotten to do a damn thing."

Last year, he got his chance: After the company he works for changed hands and his travel obligations changed, Furr decided to run for justice of the peace. Elected last fall, he diligently studied the 25-page Vermont Justice of the Peace Guide from the Secretary of State's Office. In its outline of a JP's mandatory and discretionary duties — which include assisting in local elections, officiating marriages, hearing property tax abatement requests and notarizing documents — Furr came across this provision: "If commissioned by the Supreme Court, a justice of the peace may also serve as a magistrate."

"This is an unusual event," the guide stated, "one that would occur only in extraordinary cases."

Curious about how often this provision is used and under which "extraordinary" circumstances — JPs don't have to be lawyers; magistrates do — Furr inquired among his fellow Richmond JPs. None had ever been appointed magistrate, he discovered, nor had any of them heard of another JP serving as one.

"Since being a JP is all about the raw exercise of power," Furr joked in an email to Seven Days, "I was hoping to get to do the whole magistrate thing at some point."

Furr has a distinct interest in minutiae and positions that carry no actual power; as he revealed in a May 11, 2018, op-ed published in the Washington Post, he's also Richmond's "weigher of coal." But he poses a good question: Can JPs ever play the active judicial role that modern magistrates do? And if not, why is that provision on the books?

If the official titles "magistrate" and "justice of the peace" sound as anachronistic to modern ears as "fence viewer" and "weigher of coal," it's because they date back to roughly the same period in Vermont history. JPs, of which there are nearly 2,000 statewide, are among the earliest established and most numerous public offices in Vermont. Created by the Vermont Constitution in 1777, JPs once served as magistrates, the lowest tier of judges, hearing minor civil and criminal offenses.

"A 1779 law provided that a justice could try any action in which the matter in demand or fine did not exceed ten pounds, or potential corporal punishment did not exceed ten lashes," according to the Secretary of State's Office guide.

It wasn't until the passage of a 1974 state constitutional amendment, which reorganized Vermont's entire judicial system, that JPs were stripped of their judicial authority. By contrast, modern-day magistrates, who must be admitted to the bar, are found primarily within Vermont's family courts, where they preside over cases involving child support, parental contact and child-visitation rights.

For reasons that remain unclear, the 1974 constitutional amendment didn't remove the magisterial duty clause related to JPs. But, as Jenny Prosser, the secretary of state's general counsel and director of municipal assistance, explained via email, "We personally have never heard of this constitutional provision being used in recent times."

In his 2019 book Law of the Hills: A Judicial History of Vermont, Paul Gillies noted that, historically, "There were instances where members of the governor and council sat with the Supreme Court when other judges couldn't make it or had conflicts." However, the Montpelier attorney, who served 12 years as deputy secretary of state, knew of no instance in which a JP was appointed to the high court itself.

Associate Justice Marilyn Skoglund, who is set to retire from the Supreme Court in September, was perplexed by the provision, describing it in an email as "a truly frightening idea.

"We do appoint our judicial magistrates to serve as trial judges when needed," she added, "but I have never heard of us 'commissioning' a justice of the peace to serve as a judicial magistrate."

That's bad news for Furr, who seems to have a proclivity for choosing positions that are more symbolic than powerful. His post as Richmond's appointed weigher of coal dates back to the time when many Vermonters heated their homes with the sooty black stuff. His official duties in that position?

"Absolutely nothing," Furr confessed. "I've been weigher of coal for four or five years, and no one has ever asked me to weigh a lump." There's no official municipal scale — in Richmond or any other Vermont town — to handle the task.

Still, as weigher of coal, Furr signed and abides by an official ethics policy — a standard, he noted, that exceeds that expected of the president of the United States.

"I will need to take all this very seriously," Furr wrote in his brief yet pointed Washington Post op-ed, which hinged on that observation. "I want no conflicts of interest when it comes to my not weighing coal. I want to show no favoritism to family members and other individuals in the non-pursuance of my duties."

Will Furr, or any other JP, ever get to don a black robe, wield a gavel and throw the book at scofflaws? Though the provision remains on the books, Furr isn't optimistic.

"Since the only likely extraordinary circumstances that would cause the Supreme Court to start looking around for emergency magistrates would probably be a zombie apocalypse, an outbreak of civil unrest or open insurrection," he conceded, "it's probably never actually going to come up."

Hey, one can always hope.

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