‘Side Judges’ Wear Two Hats
‘Side Judges’ Wear Two Hats By Cornelia Cesari
What is a side judge?
The position of side, or assistant, judge was established at the beginning of the Vermont constitution in the 18th century.
"The early drafters got the idea from Pennsylvania," explained Vermont Law School Professor Kinvin Wroth this week. "The idea was to have another layer between judge and jury to provide popular input in decisions. They have held that judicial role ever since."
The title derives from their literal position sitting on either side of the judge in Superior and Family Courts. They cannot sit on criminal cases, only civil. If one or both side judges are unavailable, the case can proceed without any, unless the judge specifically wants a side judge involved.
The side judges are allowed to give input on findings of fact but not facts of law. However, the side judges weigh in on the decision, and they can overturn the regular, legally-trained judge’s opinion, if they both oppose the judge.
If they take some special training, they can also rule alone on 3 types of cases: traffic, uncontested divorces, and small claims.
[Incidentally, robes were not worn by Orange County side judges until recently. They appear in the 2004-05 budget at $650.]
Assistant judges are also the administrators of the county—sort of an executive and legislative office combined. They serve as caretakers and managers of county properties: the courthouse and the sheriff’s office. They also write the county budget, which includes their own salaries.
They receive two sources of compensation. When sitting on the bench, assistant judges are paid by the state. The job for which the county pays them is that of county administrators; it is that payment which has become controversial in Orange County.
Vermont Statutes Title 24, Chapter 5, section 133 establishes the procedure for determining county budgets. The assistant judges prepare the budget, hold a preliminary hearing, and then hold an annual meeting. While they are to "invite discussion," ultimately they are not required, legally, to act upon any outside input. Once enacted by the judges, the county expenses are apportioned to the various towns in accordance with their grand list. The towns have no choice but to accept the side judges’ budget and pay their share.
There are those who believe the position should be abolished. As far back as 1985, an article was published in the Law Review entitled, "Bye Bye Side Judges."
"The bar and the judiciary don’t look with unqualified enthusiasm on the institution of side judges," acknowledged Wroth.