Every man is entitled by law not only to a fair trial of his case, but to one as free as may be from suspicion of par- tiality or undue influence; and no ar- gument should be necessary to con- vince one that, when a judge leaves the bench and appears as an attorney or counsel in a cause on trial by jury in his own court, the minds of the jurors, who are accustomed to receive and obey in- structions from the court, have by rea- son thereof been unduly influenced and an impartial trial not had.58


In 1924, Watson’s decision declared the actions of the Emergency Board legal and constitutional, by its statutory authority to authorize the payment of expenditures dur- ing the recess or adjournment of the legis- lature.59


Red Flags


One way of assessing the lasting pow- er of a judge’s decisions is to look for the red flags that appear insolently above the reported case in Westlaw. Out of 410 de- cisions, Justice Watson’s red flag score is eleven, of which three are explained as su- perseded by statutory change.60


These cas-


es reveal the evolution of law over time. Watson’s decision in Laird v. Perry (1902) held that a wife’s separately-owned proper- ty, including the homestead, could be dis- posed of by her husband, and confirmed that ruling in Johnson v. Chandler (1914) and Ellingwood v. Ellingwood (1917). In 1993, the Vermont Supreme Court abro- gated those rulings in Estate of Girard v. Laird.61


The greatest public criticism ever


leveled against Watson came when Chief Justice Sherman Moulton took issue with the same principle in Watson’s decision in City of Barre v. Town of Bethel (1929), call- ing the doctrine it espoused “unsound” in Proulx v. Parrow (1948).62 A pair of Justice Watson’s decisions were subsequently reversed, or abrogated, by rulings of the U.S. Supreme Court. His 1911 decision in State v. Drown, which voided a conviction because the defendant was nev- er asked to plead guilty or not guilty, was nullified by the ruling in Garland v. Wash- ington (1914), which found no substantive rights offended by a failure to ask how a defendant might plead. Justice Watson had the privilege of recognizing this overturn- ing of the principle in 1911 in his decision in State v. Prouty (1920).63


The second was


Champlain Realty Co. v. Town of Brattle- boro (1923).64


In another Watson decision,


the Vermont Supreme Court upheld Brat- tleboro’s taxing of pulpwood brought down the West River and lodged in town on April 1, but when the case was appealed to the U.S. Supreme Court that decision was over-


www.vtbar.org


turned, applying the Commerce Clause to avoid the tax.65


Dissents


Often the voice of a justice is masked by the machine-like roll of the judicial de- cision, banging out principles, followed by serial case citations, chanting out ideas es- tablished by precedent. This is not the case with Judge, Justice, and Chief Justice Wat- son. His voice in speaking for the majority is calm, business-like, and accessible. Many judges give voice to their personal opinions far more freely in dissent, but here, as in the majority decisions he wrote, Watson re- mained restrained and firm, without being rude or dismissive of the majority. He dis- sented in nine of the thousands of cases he heard in his thirty years on the bench, and issued two concurring opinions where he objected to a portion of the majority ruling. In two cases, the judge was so restrained


that he chose not to explain why he dissent- ed.66


When he did explain his position, he


wrote what he believed. In his concurring opinion in Taplin & Rowell v. Harris (1914), Justice Watson wrote, “I cannot agree that on the evidence the plaintiff’s case hangs by such slender threads as there indicated, and consequently am moved to express my views by way of this concurring opinion.”67 Watson’s dissents were often joined by oth- er judges. John Rowell shared the dissent in several cases.68


Russell Taft, George M.


Powers, and Leighton Slack were others who paired with Watson, objecting to the majority opinion.69


The dissent in Sabre v.


Rutland R. Co. (1913), discussed above, was written by Powers, but joined by Wat- son.70


That case, along with State v. Winters


(1929), are his most memorable dissents. State v. Winters is remembered for the appearance of Clarence Darrow for the de- fense. The courtroom was filled to capacity, and the doors thrown open to allow more spectators to watch the great advocate in action. The majority reversed the convic- tion, and remanded the case to the trial court. Chief Justice Watson presided. The usual rule limiting argument on each side to one hour was waived, and two hours was supplied. Darrow argued seven points, and the high court denied all but one, involv- ing evidence that Winters had cut his finger a few weeks before the murder, as a way of explaining blood on his pants. Accord- ing to the majority, that evidence should have been allowed, and the case was re- versed and remanded for a new trial. Wat- son dissented, along with Leighton Slack. The problem was with the attorney, not the judge. He wrote,


The only question worth considering is whether the [offer of proof] of counsel went far enough to save the question for


THE VERMONT BAR JOURNAL • WINTER 2012 13


Ruminations: A Hero Once, a Judge for Life


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