ty appears in any complaint, that case will have to go before a judge sitting alone; any miscalculation as to wheth- er a case is to be treated as one at law or in equity will automatically mean a retrial, with a concomitant waste of time and money to litigants and an al- ready too busy judiciary.64
The hard line of the statute was modified
to require questions of jurisdiction to be raised at the start of an action, and presid- ing judges, sensitized to the Court’s direc- tions, remember to ask the assistant judges to recuse themselves in matters purely eq- uitable. Where law is part of the salad, the side judges are authorized to sit. But the consequences of Soucy were challenging for the administration of the judicial system. The following year, in Solo- mon v. Atlantis Development, Inc., the high court concluded that a statute, designed to cure the problem of whether assistant judges should sit with the presiding judge in certain cases, was invalid as a violation of Section 5 (separation of powers). The leg- islature had responded to Soucy by defin- ing which cases were appropriate for the side judges. It included a moratorium on challenges to cases decided before Soucy, to avoid an onslaught of motions to re- open.65
The issue was whether the legisla-
ture had the power to make a retrospective act. Looking at Bates v. Kimball (1914), the Court found its answer. The legislature had gone beyond its authority to “prescribe the rule of civil action” by deciding “the pro- spectivity or retrospectivity of a rule of law established by the judicial branch.”66 A subsequent challenge on this same subject received different treatment. Side judges had participated in a transfer pro- ceeding to juvenile court, but the error was regarded as harmless. “[T]he mere partici- pation of assistant judges in criminal cases which involve legal questions, questions of mixed law and fact, or by extension, ques- tions calling for the exercise of judicial dis- cretion, does not initially deprive a superi- or court of its statutory jurisdiction to hear the case.”67
Now What Back at the jury trial, where I first start-
ed this story, I was perplexed by the lack of clarity, at least in my mind, between what the jury was to do and what the judge would decide on the issue of adverse pos- session. How can a judge fashion equitable relief from a jury verdict? A jury does not decree or enjoin. It is the least articulate decision-maker. Adverse possession, that ancient doctrine allowing private taking of private property, first adopted as a princi- ple of Vermont law by statute in 1787,68 a mixed question of law and fact.69
is Before
www.vtbar.org
1969, this case would have been tried in the court of chancery.70
The jury verdict on
damages would have come in a separate action in superior court. The process would have taken longer. The process could have involved a jury trial. Fact-finding, if the par- ties agreed, could be referred to a jury, and the Chancellor was obliged to defer to the jury’s decision.71
But when the case was re-
turned to chancery, the chancellor, sitting alone, would concentrate on the equities of the question before him. There would be a greater focus on the distinction between law and equity. The arguments would be made in the language of chancery, by solic- itors talking to a chancellor. The courtroom would be the same, as would the furniture, and even the principal actors, but the fo- rum would be wholly chancery. Instead, we live in a bowl of goulash.
Merger has mixed up the differences for- merly found in a separate system, and has led to the neglect of the rich legacy of Chancery in favor of a hybrid system that looks beyond the distinctions of law and equity and finds justice in an outcome that is not purely one or the other. Equity risks becoming what those who celebrated its independence from the law most feared— the great and accumulated wisdom of chan- cery reduced to forms and standards, cap- tured by the law and held hostage by the necessities of administration. It becomes merely a set of procedures and tests—an injunction, a relief mechanism from the in- justice of a jury verdict, a foreclosure—and not a living system. No longer need we search for an answer to whether law pro- vides an adequate remedy; the adequate remedy is present in the courtroom, as long as it has been pled.72 Today, by statute, judges of the superi- or court, including environmental and pro- bate judges, have the powers of a chancel- lor in all matters that come before them.73 The name “chancellor” has survived in stat- ute, but the persona is fading into the fab- ric of the court system. One definition of a conservative is one who mourns for the past. There is value to remembering. No one wants to return to a separate system of law and equity, but merger must never lull us into neglecting equity’s history, au- thority, or malleability. ____________________ Paul S. Gillies, Esq., is a partner in the Montpelier firm of Tarrant, Gillies, Merriman & Richardson and is a regular contributor to the Vermont Bar Journal.
____________________ 1
WILLIAM SLADE, STATE PAPERS OF VERMONT 551 (1826). Henry Harmon, whose Manual of Vermont Court Procedure (1912) provides a comprehensive introduction to the practice in the court of chan- cery in his day, noted that the first equity case he could find was a suit by Ethan and Ira Allen against their brother, Levi, for specific performance in a
2 THE VERMONT BAR JOURNAL • FALL 2012 17 1777 Vermont Constitution, Section XXI.
Ruminations: The Vermont Court of Chancery
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44