Published May 26, 2011 in the Rutland Herald
Justice Denise R. Johnson
Justice to leave state’s high court
MONTPELIER — The first woman to serve on the Vermont Supreme Court, Justice Denise R. Johnson, announced on Wednesday she will resign in August after more than 20 years as a member of the state’s highest court.
Johnson was appointed by Gov. Madeleine Kunin in 1990 and is known as a justice who worked to ensure all Vermonters get a fair shake from the criminal justice system regardless of their station in life.
Johnson’s greatest legacies, however, may be the way she addressed the intersection of gender and the law and her opinion in Baker v. State, the landmark ruling that laid the groundwork for same-sex marriage rights in Vermont.
In response to Johnson’s announcement, Gov. Peter Shumlin acknowledged Johnson’s work on behalf of Vermonters who historically have been marginalized.
“Justice Johnson has been a civil rights giant in Vermont — from her days chairing the Human Rights Commission to her many years on the court,” Shumlin said in a statement.
Johnson, 63, sent a one-paragraph letter to Shumlin on Wednesday announcing her plan to resign on Aug. 31.
She wrote that it had been an “honor and a privilege” to serve on the Supreme Court, but added “it is time to explore new opportunities.”
Johnson could not be reached for comment to further explain her decision.
Vermont Law School Professor Cheryl Hanna said the timing of Johnson’s announcement is not surprising, because it comes shortly after Shumlin, who is a Democrat, took office and it will allow him to choose her replacement.
It’s common for justices to step down at a time when a governor of the same party that nominated them holds office, Hanna said. Kunin also was a Democrat.
Shumlin’s predecessor, Gov. James Douglas, was a Republican who held office for eight years.
“That’s the backstory,” Hanna said. “I can’t imagine she ever would have resigned when Douglas was in office.”
Hanna said the two justices Douglas appointed, Chief Justices Paul Reiber and Justice Brian Burgess, are considered conservative, and the court has had a number of split decisions with the two Douglas appointees on one side.
Sen. Alice Nitka, who chairs the Legislature’s judicial retention committee, was surprised by the announcement because Johnson had been granted a new six-year term earlier this year.
Johnson’s departure will kick off an appointment process that starts with Shumlin asking the state’s judicial nominating board to announce the pending vacancy and review applicants. The board has 11 members appointed by the House, Senate, the governor and the state bar association.
The board will forward a list of nominees to Shumlin, who can reject the lists until he receives a candidate he wants.
“Ultimately, it’s the governor’s decision, with input from the judicial nominating committee,” Hanna said.
Supreme Court appointments are a profound part of a governor’s legacy, Hanna said, because the justices usually stay on the court longer than the governor stays in office.
“It’s a big deal,” she said.
Hanna named three lawyers she believes will be on Shumlin’s “short list” for the Supreme Court, two of whom he has appointed to top posts since taking office: Beth Robinson, his general counsel, and Elizabeth Miller, commissioner of the Department of Public Safety.
The third likely candidate Hanna named is Bridget Asay, an assistant attorney general who last month argued Vermont’s prescription drug data mining case before the U.S. Supreme Court.
Shumlin likely doesn’t want to leave the court with one woman and has a good track record of appointing women, Hanna said.
But Hanna said the three she named are among the smartest lawyers in the state.
“The fact that they’re women is coincidental,” she said.
Justice Marilyn Skoglund, who sits on the Supreme Court, is the only woman other than Johnson to be appointed.
Robinson, like Johnson, had a role in Baker v. State: she was co-counsel for the defendants.
In that case, decided in 1999, Johnson agreed with the majority in the case that denying same-sex couples marriage licenses was unconstitutional, but she disagreed on the reason why and what the remedy should be, according to Hanna.
The court decided to have the Legislature tackle how to grant the rights of marriage. Johnson thought the justices should have immediately allowed for marriage because they had found the state was violating the constitution, said Hanna.
Lawmakers chose to grant civil unions instead or marriage, a step same-sex marriage advocates argued fell short of granting equal rights to gay Vermonters.
“She would have simply legalized same-sex marriage from the bench,” Hanna said.
Johnson also thought the question of same-sex marriage was a gender issue — because it revolved around whether two men or two women could marry — rather than a homosexual discrimination issue, Hanna said.
“It wasn’t really the basis of the court’s opinion, but I think it shows her keen insight into gender cases, generally,” Hanna said.
“I think in some ways her participation in that decision will be among her most important legacies,” added Hanna.
In addition to her work on the state’s Human Rights Commission, Johnson has been a strong supporter of legal aid and the public defender’s office, which benefit low-income residents, Hanna and others said.
“It’s one of the things I think kind of defines her outside of her legal opinions,” said Vermont Defender General Matthew Valerio.