Editor’s note: This op-ed is by Robert Appel, executive director of the Vermont Human Rights Commission.
We thank and honor Associate Justice Denise Johnson for her 21 years of service on Vermont’s Supreme Court. For Vermonters committed to full enjoyment of human and civil rights for all, Justice Johnson’s leadership and vision has been invaluable in progress made to date. Before her appointment to the Supreme Court in 1990, from 1980-88 Justice Johnson served as an Assistant Attorney General for Civil Rights and then Chief of the Public Protection Division. She then entered private practice while also serving as the first chair of the Vermont Human Rights Commission.
For those of us of a certain age, cast your mind back to 1981, the year that President Ronald Reagan appointed Sandra Day O’Connor to sit on the United States Supreme Court. Justice O’Connor was the 102nd member of the Court, but its first woman. Future Justice Johnson was then the director of the AG’s Civil Rights Division. She was also my supervisor and mentor. I remember well the pride and excitement that she expressed that day.
It was not until 1978 that the first 100 women had gained admission to the Vermont Bar. By 1981, women were still a tiny minority of the 1,250 lawyers in Vermont. There were virtually no female jurists in Vermont, and those few were elected probate or assistant judges. Vermont’s first female trial court judge was not appointed until 1984 with the second appointed in 1988.
This landscape has changed dramatically over the past 30 years with Justice Johnson leading the way. As reported recently, Vermont has the highest percentage of female jurists in the country, nearly 40 percent, well above the national average of 27 percent.
Justice Johnson brought a significantly feminist perspective to the Supreme Court. Shortly after her appointment, the Vermont Judiciary and Bar Association issued its “Report: Gender and Justice (1991).” Justice Johnson was instrumental in this work documenting institutional bias in the justice system against not only female litigants but also female attorneys. This candid assessment led to considerable reform as Vermont prepared to move into the 21st century.
Justice Johnson may be most noted for her dissent in the 1999 landmark case of Baker v. State. The Court held unlawful Vermont’s failure to allow same sex couples to enjoy the common benefits offered to heterosexual couples through civil marriages. The other four members of the Court speaking to our “common humanity” ruled that the refusal of Vermont to sanction same sex unions unconstitutionally discriminated against gay and lesbian couples. The majority directed the Legislature to amend the state’s marriage laws with all deliberate speed (borrowing from Brown v. Board of Education, the landmark school desegregation case issued by the US Supreme Court in 1954). In dissent, Justice Johnson opined that the Supreme Court should immediately enjoin the State’s refusal to issue marriage licenses to same sex couples rather than rely on the Legislature to change the law.
However, Baker was far from Justice Johnson’s only notable dissent. She is quite willing to share her views on controversial issues whether or not joined other members of the Court. Particularly in cases involving fundamental civil rights, Justice Johnson has been a consistent leader in interpreting our state constitution to provide greater protection to individuals that does our federal constitution.
Justice Johnson has shown sensitivity to the rights of persons with intellectual challenges. In criminal cases, she has urged the Court to hold that criminal defendants with mental disabilities may not validly waive important constitutional rights such as against self-incrimination unless the State can show that the waiver was fully knowing and completely voluntary.
Recently, Justice Johnson dissented in an age discrimination in employment case in which the majority upheld the ability of the State Police to involuntarily retire its troopers at age 55. Justice Johnson would have the State Police engage in a regular, individualized assessment of physical and mental fitness of its troopers to perform the essential functions of the job.
Justice Johnson’s view of her judicial responsibilities is not restricted to deciding cases that come before the Court. She has chaired the Court’s Equal Access to Justice Task Force and has worked to support the provision of legal services to persons without means to hire counsel in civil matters. She has aided the effort to make courts more accessible to persons with disabilities and to ensure the provision of interpreters to litigants and witnesses with limited English proficiency, or who use American Sign Language. She has been active in efforts to understand the reasons behind Vermont’s grossly disproportionate over-representation of persons of color in Vermont’s prisons.
Justice Johnson leaves a legacy of vision and leadership on the Court. Hopefully, the governor will be mindful of this when he gets his first opportunity to appoint a justice to the Vermont Supreme Court.
