19 A.3d 598
Vt.2011Background
- Respondent Allen Hodgdon, Essex County assistant judge, ran for probate judge in 2006 without resigning his current office.
- He was elected probate judge and reelected as assistant judge, serving concurrently in both roles.
- Judicial Conduct Board charged Hodgdon with violating Canon 5(A)(3) for not resigning upon candidacy.
- Board found clear and convincing evidence of violation and recommended a 30-day suspension plus resignation from one office.
- Vermont Supreme Court held the Canon applies to candidacy for any elective office and sustained a sanction, but imposed a public reprimand instead of suspension.
- Court noted later legislative change (4 V.S.A. § 278) allowing dual service if elected to both offices, but declined retroactive application to Hodgdon’s conduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Canon 5(A)(3) require resignation when running for probate judge? | Hodgdon argues it only applies to non-judicial offices. | State interprets Canon 5(A)(3) as applying to any elective office, including probate judge. | Canon 5(A)(3) applies to candidacy for any elective office; Hodgdon violated it. |
| Is Canon 5(A)(3) constitutional under federal Equal Protection and First Amendment standards? | Hodgdon asserts irrational burden and chilled candidacy rights. | State asserts compelling interests in impartiality; balancing tests uphold restrictions. | Canon 5(A)(3) passes constitutional scrutiny; it serves important state interests with minimal burden. |
| Does Vermont’s Common Benefit Clause invalidate Canon 5(A)(3)? | Hodgdon claims disadvantage to part of the community of judges who seek other offices. | Canon serves public trust and impartiality, related to government goals. | Canon 5(A)(3) satisfies the Common Benefit Clause; rationally related to legitimate governmental interests. |
| Is the 4 V.S.A. § 278 retroactive and does it affect Hodgdon’s sanction? | Statute would permit dual service; wants retroactive application to absolve conduct. | Statute operates prospectively; retroactive amendment not decided in this case. | Statute’s retroactive application not decided; court notes potential conflict and defers to rulemaking. |
| What is the appropriate sanction for Hodgdon's conduct? | Board's recommendation of suspension plus resignation. | Hodgdon’s long service warrants less severe sanction. | Public reprimand is the appropriate sanction; less severe than Board’s recommendation. |
Key Cases Cited
- Clements v. Fashing, 457 U.S. 957 (U.S. 1982) (upheld resign-to-run for judges; state interests in impartiality)
- Morial v. Judiciary Comm'n of State of Louisiana, 565 F.2d 295 (5th Cir. 1977) (three purposes of resign-to-run: prevent abuse, post-loss issues, appearance of impropriety)
- In re Colby, 2009 VT 126 (Vt. 2009) (VT canon applying resign-to-run; prior VT ruling cited)
- Baker v. Hazen, 133 Vt. 433 (Vt. 1975) (incompatible offices concept; separation of constitutional and canon claims)
- Mulholland v. Ayers, 109 Mont. 558 (Mont. 1940) (construing right to elect versus resign-to-run statute)
- Adams v. Supreme Court of Pa., 502 F. Supp. 1282 (M.D. Pa. 1980) (resign-to-run not violative of First Amendment when state interests served)
- In re Dunleavy, 2003 ME 124 (Me. 2003) (resign-to-run upheld against constitutional challenges)