MONTPELIER — Vermont’s Legislature elected to keep six superior court judges on the bench Wednesday, including one, Rachel Malone, whose performance was thrown into question earlier this month.
Debate on the floor over whether Malone should be appointed to a new, six-year term stretched for nearly an hour. Sen. Ruth Hardy, D-Addison — who serves on a joint House and Senate committee that voted against keeping Malone on the bench — sharply criticized the judge’s performance and urged colleagues to deny the Bennington County family court judge another term.
Other legislators rose to Malone’s defense, though. She later won approval by an overwhelming 139-29 margin.
John Valente of the Bennington criminal unit, meanwhile, won approval 166-2. And the four other judges scored unanimous backing: David Barra, who serves in Addison and Bennington civil court; Benjamin Battles, who covers four civil courts in northern Vermont; Michael Harris, a criminal judge in Washington County; and Thomas Walsh, a statewide environmental court judge.
Every six years, Vermont’s superior and Supreme Court judges are subjected to a “retention” process. The timing of when judges in Vermont come up for a vote is tied to the seat, not the person, which is why Malone was up for a vote this year despite being appointed to the bench by Gov. Phil Scott in November 2023.
Much of the work of reviewing judges’ qualifications is done by the panel Hardy sits on, the Judicial Retention Committee. That panel interviews the judges and collects public testimony before recommending whether lawmakers should vote to approve a judge for another term.
The joint committee took the rare step, in a 3-5 vote, of recommending against keeping Malone on the bench earlier this month. Ahead of Wednesday’s election, Malone hired an attorney to lobby on her behalf and pitch legislators on keeping her on the bench.
Not since 2011 had the committee voted against “retaining” a judge; meanwhile, the full Legislature has not done so since 1993.
The panel’s vote, and Wednesday’s floor debate, centered on concerns that Malone had taken too long in recent years to issue many of her court decisions, frequently surpassing the timelines recommended by the state’s Judiciary.
Malone said in a recent letter to lawmakers that Vermont’s judges are expected to issue decisions in less than 30 days when possible, and always in less than 90 days. As of about a year ago, in March 2025, she had 51 decisions that were pending for more than 30 days, and 23 that had been under advisement for more than 90 days, Malone wrote.
Last spring, Malone said she started working with a more senior civil judge to improve her work. She also sought out and received a diagnosis for ADHD. After starting on medication, she said, her performance began improving.
As of this month, she wrote that she no longer has any decisions that have been pending for 90 days or more, and has six decisions that were past 30 days. She said she’d also developed a work improvement plan with judiciary leaders.
Hardy said she and the other committee members who voted against retaining Malone weren’t convinced that, even with those changes, the judge was on the right track.
“Judge Malone presented to many of us as someone who was in over her head, not someone who has a handle on her very important position,” Hardy said on the floor.
Some evaluations from attorneys who argued in Malone’s courtroom, as well as court staff who worked with her, “noted how intelligent, likable and fair she is,” Hardy added. But despite those qualities, the senator argued, Malone had long failed to adequately perform “the actual work required of a superior court judge.”
Rep. Ian Goodnow, D-Brattleboro, was among those who had a different assessment. He said on the floor that as an attorney, he has argued before Malone in court and was impressed by her “patience, her thoughtfulness and ability to see to the heart of the matter.”
New judges have a hard job learning how to balance many different tasks, he argued.
“It’s clear that Judge Malone did struggle with that balance,” he said. “I am comforted in knowing that in her base position, in the Bennington family division, Judge Malone is improving.”
