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Civil union foes in Vt. hope to unseat justices

MONTPELIER -- Critics of civil unions, who lost in the legislative battle five years ago and have been rebuffed at the polls ever since, turned their ire Thursday on the Supreme Court justices whose 1999 ruling set the sea change in motion.

"Justices take an oath to uphold the constitution the way it is written, not an oath to uphold the constitution the way they wish it was written," said Kevin Blier of the Citizens Alliance for Judicial Accountability, one of many speakers who complained that the justices over-reached when they found in the state Constitution a right for gays and lesbians to the benefits of marriage.

The critics turned out at a public hearing Thursday night on whether the justices should get new six-year terms. The House and Senate, in joint session, are scheduled to make that decision next month in a secret ballot.

Also attending were what seemed to be a equal number of supporters, both of the individual justices and of the court's ruling on gay rights and education financing.

"Supreme court justices have to make decisions that are unpopular," said Doug Wehner, a teacher who lives in Wolcott. "It is part of their job."

Four members of the court are up for retention -- the fifth seat is vacant -- but two justices drew most of the criticism Thursday night.

Only two people testfied against newly named Chief Justice Paul Reiber, who was not on the court for the 1999 decision that said gays and lesbians must be granted the benefits of marriage. And Justice Marilyn Skoglund, appointed in 1997, also drew few comments.

But the longest serving justices -- John Dooley, appointed in 1987, and Denise Johnson, appointed in 1990 -- came under attack not just for their role in the so-called Baker decision on gay rights, but also for the court's 1997 Brigham decision declaring unconstitutional the state system of financing schools.

"These two justices wrote into the Vermont Constitution meanings not present," said David Edson of Underhill. "Justice Dooley and Justice Johnson have damaged the Vermont Constitution by abandoning the common sense interpretation of its words."

John McClaughry, president of the Ethan Allen Institute, argued in a briefing paper presented to the committee that his opposition to Dooley and Johnson was prompted by more than his belief that the justices overstepped their bounds in the Brigham and Baker cases.

"The issue is not Act 60 or civil unions," he wrote. "The issue is the need for legislative discipline of the two justices who in essence twice agreed to invent their own special Constitution, found in it new 'rights' never suspected even a decade ago, put their judicial gun to the heads of the legislature . . ."

Kinvin Wroth, the former dean of the Vermont Law School, argued that the justices simply decided the cases before them and that opponents were merely upset with the result.

"The charge of activism is shorthand for 'I disagree with the result,' " said Wroth.

Several critics also mentioned a complaint that Dooley improperly used his status as a justice to gain access to files dealing with a case in which he was involved personally.

The justices did not speak at Thursday's hearing, but will get a chance to meet with the committee to discuss any issues raised at the hearing before the committee votes. The committee recommendation will go before the full House and Senate for a secret ballot vote tentatively scheduled for March 17.

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