In re Hodgdon (2010-001)
2011 VT 19
NOTICE: This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports. Readers are requested to
notify the Reporter of Decisions, Vermont Supreme Court,
2011 VT 19
Eric R. Benson, Westford, for Appellant.
Stephen S. Blodgett of Blodgett, Watts
& Volk, P.C.,
PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
¶ 1. PER CURIAM. Respondent Allen Hodgdon, an assistant judge for Essex County, appeals from a Judicial Conduct Board decision that he violated Canon 5(A)(3) of the Vermont Code of Judicial Conduct by failing to resign his judicial office upon becoming a candidate for the office of probate judge for Essex County. Respondent contends that: (1) Canon 5(A)(3) does not require an assistant judge to resign from office upon becoming a candidate for probate judge; (2) to the extent that it does contain such a requirement, Canon 5(A)(3) violates respondent’s constitutional rights under the federal and Vermont constitutions; and (3) this Court should amend Canon 5(A)(3) retroactively so that it does not cover his conduct. We find no merit to the claims, but impose a sanction different from that recommended by the Board. We conclude that public confidence in the integrity of the judiciary is adequately preserved in this case by imposition of a public reprimand.
¶ 2. This case turns on the scope and constitutionality of what is commonly called a “resign to run” provision found in Canon 5(A)(3): “A judge shall resign from judicial office upon becoming a candidate for any elective office, except that a judge of probate or an assistant judge may be a candidate for reelection or may serve as town meeting moderator, provided that the judge complies with the provisions of Section 5C.” A.O. 10, Canon 5(A)(3). We note that resign-to-run requirements are common in state law although their scope varies widely. The United States Supreme Court explained the rationale for such provisions in Clements v. Fashing, as follows:
The material facts of this case are undisputed. Respondent was
first elected to the office of Assistant Judge for
¶ 4. In April 2009, the Board initiated formal disciplinary proceedings against respondent, asserting that, by becoming a candidate for probate judge without resigning the office of assistant judge, he had violated Canon 5(A)(3). Following a hearing in December 2009, the Board issued a written decision, finding by clear and convincing evidence that respondent violated the Canon. The Board imposed a suspension from the office of Assistant Judge for at least 30 days and thereafter until respondent resigned from either one of his judicial positions. This appeal followed.
We note at the outset that the findings and conclusions of the Board,
although entitled to “great weight,” are strictly advisory in nature. In re Boardman, 2009 VT 42, ¶ 12, 186
¶ 6. Respondent first contends that the Board misinterpreted Canon 5(A)(3) to require that he resign his position as assistant judge upon becoming a candidate for election as probate judge. Respondent maintains that, properly understood, the Canon applies solely to judges who become candidates for “non-judicial” elective office, thereby excluding assistant judges who run for the office of probate judge or vice versa.
As with any other statute or rule, “our primary objective” in construing
Canon 5(A)(3) “is to effectuate [its] intent.” The
Ice Center of Washington West, Inc. v. Town of Waterbury, 2008 VT 37, ¶ 7,
183 Vt. 616, 950 A.2d 464 (mem.). The first
step in the interpretive process is to examine the language of the Canon
itself; “[w]hen the plain language is clear and unambiguous, our inquiry is at
an end, and we enforce the [provision] according to its terms.”
Canon 5(A)(3) is facially unambiguous. It
plainly provides that a judge shall resign from judicial office upon becoming a
candidate for “any elective office,” not any non-judicial
elective office. See In re Colby, 2009 VT 126, ¶
¶ 9. Respondent asserts, nevertheless, that ambiguity may be found in other sources. He cites Canon 5(C)(1), which states that “[e]xcept as provided in this Section C, a candidate for election or reelection as judge of probate or assistant judge shall comply with applicable provisions of Sections 5A(1) and 5B.” Respondent suggests that the omission of Section 5(A)(3) from this section raises some ambiguity concerning its scope and application. The argument is unpersuasive. Sections 5(A)(1), 5(B) and 5(C) all deal with specific political campaign activities that candidates for judicial office may, or may not, engage in. In contrast, Canon 5(A)(3) places a restriction on who may become a candidate for judicial office in the first instance. That Canon 5(A)(3) is not referenced in Canon 5(C)(1) is, therefore, consistent with the overall structure of Canon 5 and raises no ambiguity.
¶ 10. Respondent also cites 4 V.S.A. § 355, which provides that, when a probate judge is “incapacitated,” his or her duties may be performed during the period of incapacity by either the register of probate, a probate judge from another district, or an assistant judge of the superior court in the same district. Again, this provision has no bearing on Canon 5(A)(3). That an assistant judge may temporarily perform the duties of a probate judge does not affect the clear import of Canon 5(A)(3), which is concerned with the broader implications of running for one judicial office while performing the duties of another. We thus find no ambiguity in this regard.
Ultimately, respondent maintains that, even if the omission was
intentional, the drafters’ departure from the Model Code was “unreasonable” and
“does not make any sense.” The argument is essentially a variant of two
others. One is that, however unambiguous, Canon 5(A)(3)
nevertheless leads to absurd results that the drafters could not have
intended. See Chayer v. Ethan Allen,
Inc., 2008 VT 45, ¶ 10, 183
¶ 12. Assuming that the Canon applies and that he violated its terms by failing to resign, respondent further maintains that Canon 5(A)(3) infringes his constitutional rights to freedom of speech and equal protection of the law. He also claims that the provision violates three provisions of the Vermont Constitution. We start with the federal constitutional claim under the Equal Protection Clause.
Respondent’s main interest in this case is his right to run for elected
office. In general, the federal courts have declined to hold
that the right to run for elective office is “fundamental,” a position that was
applied in the seminal Clements decision. There, a plurality of
the high court held that “[f]ar from recognizing
candidacy as a fundamental right, we have held that the existence of barriers
to a candidate’s access to the ballot does not itself compel close scrutiny.”
Clements applied the balancing test to a resign-to-run
restriction contained in the
¶ 15. Numerous courts have since adopted and applied the Clements balancing test to uphold similar resign-to-run provisions, generally concluding that the state’s interests substantially outweighed the limited impact on office seekers forced to run for one office at a time. See, e.g., Joyner v. Mofford, 706 F.2d 1523, 1532 (9th Cir. 1983) (rejecting equal-protection challenge to Arizona Constitution resign-to-run clause and finding that it “advances substantial and important state interests, while placing a minimal burden on potential candidates”); Worthy v. Michigan, 142 F. Supp. 2d 806, 815 (E.D. Mich. 2000) (holding that Michigan rule barring sitting judges from non-judicial offices did not violate equal protection); Fasi v. Cayetano, 752 F. Supp. 942, 946-54 (D. Haw. 1990) (rejecting equal protection and First Amendment challenges to resign-to-run clause in Hawaii Constitution); Acevedo v. City of North Pole, 672 P.2d 130, 135-36 (Alaska 1983) (holding that state’s interests were “sufficiently important to justify the” rule prohibiting dual office-holding); In re Dunleavy, 2003 ME 124, ¶ 22, 838 A.2d 338 (holding that resign-to-run provision of Maine Judicial Code of Conduct “does not violate the guarantees of equal protection, freedom of speech, or freedom of association in either the Maine or United States Constitutions”); State ex rel. Carenbauer v. Hechler, 542 S.E.2d 405, 420 (W. Va. 2000) (concluding that constitutional provision forcing judges to vacate office before running for non-judicial office was supported by “State’s compelling and permissible interest”); Wagner v. Milwaukee County Election Comm’n, 2003 WI 103, ¶ 78, 666 N.W.2d 816 (holding that state’s “legitimate interests” in enacting constitutional provision prohibiting judges from holding other public office “far outweigh the burdens put upon the petitioner’s right to be a candidate for office”).
Respondent’s constitutional arguments are less about whether
resign-to-run restrictions are constitutional in general and more about the
specific restriction at issue in this case. He challenges the rationality
of applying the resign-to-run restriction to candidacy for a judicial office,
of restricting only judges, and of not including judges who seek appointive
office. These arguments are addressed directly by Clements.
Respondent has urged us to view the equal protection challenge not in
light of the broad rationales of Clements, but instead under the unique
circumstances of part-time judicial offices in a small
¶ 18. Respondent raises a second constitutional challenge under the United States Constitution—that the resign-to-run restriction violates respondent’s First Amendment rights by blocking his ability to express his political views by running for office and by denying the voters the ability to elect the candidate of their choice. Here again, the United States Supreme Court has instructed that the standard for evaluating such claims requires a balancing of the “character and magnitude” of the rights affected against the state interests advanced by the rule. Burdick v. Takushi, 504 U.S. 428, 434 (1992) (reaffirming cases holding that a “flexible standard” governs First Amendment challenges to ballot-access restrictions and recognizing that when state election laws impose “reasonable” content-neutral ballot-access restrictions “the State’s important regulatory interests are generally sufficient to justify the restrictions” (quotation omitted)). Applying this standard, courts have uniformly concluded that the public interests advanced by resign-to-run laws justify any temporary and content-neutral restriction affecting candidates and voters. See, e.g., Clements, 457 U.S. at 971 (observing that rejection of claimants’ equal-protection claim also “disposes” of their related argument that Texas resign-to-run clause violates First Amendment and characterizing claimants’ “First Amendment interests in candidacy” as “insignificant”); Morial, 565 F.2d at 302 (holding that any impairment of candidates’ and voters’ First Amendment interests was “not sufficiently grievous” to invalidate Louisiana statute requiring judge to resign office before becoming candidate for non-judicial office); Worthy, 142 F. Supp. 2d at 816-18 (holding that state’s interests in prohibiting sitting judges from running for non-judicial office justified temporary inability of voters to choose specific candidate); Adams v. Supreme Court of Pa., 502 F. Supp. 1282, 1292 (M.D. Pa. 1980) (concluding that standard of judicial conduct requiring sitting judges to resign upon becoming candidate for non-judicial office did not violate First Amendment rights of judge in light of “important state interests” served by rule); In re Buckson, 610 A.2d 203, 224 (Del. 1992) (holding that resign-to-run requirement in Delaware Judges’ Code of Judicial Conduct did not violate First Amendment interests of judges). In view of the substantial interests underlying Canon 5(A)(3), discussed earlier, we similarly conclude that Canon 5(A)(3) does not unconstitutionally burden any First Amendment rights.
We move to respondent’s arguments under the Vermont Constitution.
Although respondent’s arguments rely on a number of constitutional provisions
together, we find it helpful to look at the provisions separately, at least
initially. We start with Chapter II, § 54, which provides that certain
offices are incompatible and the same person cannot hold more than one of these
offices. Respondent points out that the offices of probate judge and
assistant judge are not considered to be incompatible under this section.
He quotes from this Court’s decision in Baker v. Hazen, that § 54
“represents a denial of a right to a citizen” and unless “it can be clearly
demonstrated that he falls within its proscription, or equally plainly shown
that he is in violation of its purpose, he is entitled to be free of its
In response, we emphasize that Canon 5(A)(3)
and Chapter II, § 54 respond to different, albeit related, concerns. The
constitutional provision imposes a restriction on who may hold certain
offices. The Canon restricts a judge from running for a different elected
office. Thus, as respondent points out, a non-judge could run for
and serve as both an assistant judge and a probate judge at the same
time. As the purposes of the Canon reflect, the resign-to-run rule
is based on the judge’s conduct during the election and not on the performance
of the responsibilities of the office after the election. Moreover, we do
not read Baker as broadly as respondent does; § 54 is not necessarily
the only source of incompatible office regulation. For these reasons, we
agree with the decision of the Maine Supreme Judicial Court in In re Dunleavy, 2003 ME 124, ¶ 21 in
upholding its version of the resign-to-run Canon against an attack based on the
incompatible offices provision of the Maine Constitution. As the Court
held, the Canon and the constitutional provision are not in conflict and the
Judicial Conduct Code could provide “a more exacting restriction for judges
than is provided in the Constitution.”
We conclude that Canon 5(A)(3) does not violate
Chapter I, Article 8 for the reasons explained in the above cases. We add
only that the right given in Article 8 is subject “to the regulations made in
this constitution,” including the disciplinary authority residing in this Court
with respect to “all judicial officers.”
We turn now to whether the resign-to-run provision of Canon 5(A)(3) violates the Common Benefit Clause of the Vermont
Constitution, Chapter I, Article 7. We have recently summarized the
inquiry in common benefit cases: (1) what “part of the community” is
disadvantaged by the legal requirement; (2) what is the
governmental purpose in drawing the classification; and (3) does the
omission of part of the community from the benefit of the challenged law bear
“a reasonable and just relation to the governmental purpose?” Badgley
v. Walton, 2010 VT 68, ¶ 21, ___ VT. ___, 10 A.3d 469 (quotation
omitted). Factors to be considered in the third inquiry are the
significance of the benefits and protections of the challenged law, whether the
omission of members of the community from the benefits and protections of the
challenged law promotes the government’s stated goals, and whether the
classification is significantly underinclusive or overinclusive.
The first two questions in the inquiry are similar to those employed in
the equal protection analysis above. The disadvantaged class consists of
judges who run for elective office. The purpose of the resign-to-run
provision is to “retain the appearance of judicial impartiality and to prevent
distraction from judicial duties.” Reporter’s Notes, A. O. 10, Canon 5(A)(3). Although we agree that the constitutional right
to hold elective office is a very important interest, we also weigh heavily the
interest in ensuring the impartiality and commitment to duties of the
judge. We are in a situation where the governmental interest can be
protected only by a prophylactic rule of the type before us. It would be
difficult to determine whether any specific judge’s decision is affected by the
judge’s candidacy for another office or whether the judge’s work effort is
affected by campaign activities for another office. Indeed, the judge’s
role depends upon public trust and confidence that can be undermined by the
appearance of conflicting interests or obligations. We agree with the
United States Supreme Court in Clements that “the State’s interests are
especially important with regard to judicial officers” and that it “is a
serious accusation to charge a judicial officer with making a politically
motivated decision.” 457
¶ 25. For much the same reasons as the federal courts have employed, we hold that the resign-to-run rule meets the requirements of our Common Benefit Clause. As with his equal protection argument, respondent attacks the reasonableness of imposing the requirement only on judges and with respect to any elected office and no appointive office. He also argues that the rationales don’t apply to him as a part-time assistant judge in a rural county. Some of these arguments may be persuasive as policy arguments, but are insufficient as constitutional arguments. Despite its imperfections, the resign-to-run rule contained in Canon 5(A)(3) is reasonably and justly related to the legitimate interests that underlie it.
¶ 26. While this appeal was pending, respondent filed a motion with the Court to amend Canon 5(A)(3) retroactively to comport with the Legislature’s recent enactment of 4 V.S.A. § 278 and to eliminate the finding that he violated the Canon. In pertinent part, the statute provides that: “An assistant judge or a candidate for the office of assistant judge may also seek election to the office of probate judge, and, if otherwise qualified and elected to both offices, may serve both as an assistant judge and as probate judge.” 4 V.S.A. § 278(a). The statute was effective on passage, June 3, 2010, see 2009 (Adj. Sess.) No. 154, §§ 17a, 239(d), and operates prospectively. See Town of Sandgate v. Colehamer, 156 Vt. 77, 90, 589 A.2d 1205, 1212-13 (1989) (holding that statutes operate prospectively unless they contain clear language mandating retroactive application). In effect, respondent argues that the statute amends the Canon and requests that amendment be made retroactive even though the statute is not retroactive. 
¶ 27. We have held that respondent violated Canon 5(A)(3) by running for probate judge while he held the office of assistant judge. The fact that he could hold both of those offices is not the point. Even if we can amend the Canon retroactively, a question we do not decide, it would not change the fact that his conduct was unethical at the time it occurred.
We have carefully separated our adjudicative procedures from our
rule-making procedures. The latter normally starts with an advisory
committee of lawyers and judges, and in some instances members of the public,
who work with a professional reporter in considering possible amendments to
rules and their language. We also have a public comment process on
proposals from the advisory committees. These procedures are critical
because rules, including judicial ethics rules, affect many people, not least
the citizens of
¶ 29. Nevertheless, we recognize that there exists a potential conflict between the new statute and Canon 5(A)(3), a potential conflict that implicates the separation of powers between the coordinate branches of government. Accordingly, we ask the civil rules committee to consider whether Canon 5(A)(3) should be amended in light of the enactment of 4 V.S.A. § 478. In making this request to the committee, we express no opinion on whether the Canon should be amended or, if so, how it should be amended.
We turn to the question of sanctions. The Board imposed a sanction
of (1) a thirty-day suspension from the office of assistant judge, and (2) a
continuing suspension thereafter until respondent resigns from one of the two
judicial offices he holds. In reaching this decision, the Board noted
that this is a companion case to In re Colby, 2009 VT 126, in which the
other assistant judge in Essex County ran for election to a town selectboard while holding the judicial office and was found
to have violated Canon 5(A)(3). The sanction the Board imposed here was
the same as that imposed on Judge Colby and upheld by this Court.
As we have often stated, the primary purpose of judicial discipline is
to “preserve and enhance public confidence in the integrity and fairness of the
justice system.” In re O’Dea, 159
First, we emphasize our point of agreement with the Board.
Although the Preamble to the Code acknowledges that not “every transgression”
must result in disciplinary action, we believe that a public sanction here is
appropriate. Notwithstanding respondent’s claim of ambiguity, we find
that the language of Canon 5(A)(3) is clear and
straightforward and that respondent’s violation of the Canon was patent and
indisputable. Although respondent claims that he relied on a legal
opinion from his attorney to the contrary, as we have pointed out, a violation
need not be willful to cause public harm or warrant public censure. See Kroger,
At the same time, we do not believe that the more severe sanction
recommended by the Board—a thirty-day suspension and compulsory resignation
from one of respondent’s two current judicial offices—is necessary or
appropriate. First, respondent’s lengthy record of judicial service is
otherwise entirely free of prior conduct violations, and we are not persuaded
that a suspension from office is necessary to restore public confidence in
either respondent’s integrity or in the judiciary’s integrity as a whole.
See In re Kroger, 167
Judge Allen Hodgdon is hereby publicly reprimanded for violating Canon 5(A)(3) of the Code of Judicial Conduct.
BY THE COURT:
Paul L. Reiber, Chief Justice
John A. Dooley, Associate Justice
Denise R. Johnson, Associate Justice
Marilyn S. Skoglund, Associate Justice
Brian L. Burgess, Associate Justice
The quoted language addressed a challenge to Article III, § 19 of the Texas
Constitution, which prohibited specific officeholders, including a “judge of
any court,” from serving in the legislature during the term for which the
officeholder was elected or appointed. The Court also addressed a
resign-to-run requirement in Article XVI, § 65 of the Texas Constitution and
said that the two constitutional clauses “serve essentially the same state
interests.” Clements, 457
 In Morial, a Louisiana Court of Appeals judge ran for Mayor of New Orleans. The resign-to-run provision was contained in the Louisiana Code of Judicial Ethics and applied only to candidacy for non-judicial office. See Morial, 565 F.2d at 297.
While we have not surveyed all states, we note that
 Apparently, the statutory section was passed in response to this disciplinary proceeding although it does not mention Canon 5(A)(3).