Ruminations, 19 VTBJ, Winter 2019-#14

• Author: By Paul S. Gillies, Esq.
• Position: Vol. 45 4 Pg. 14

RUMINATIONS

Vol. 45 No. 4 Pg. 14

Vermont Bar Journal

Winter, 2019

Justice Robert Larrow and His Legacy

By Paul S. Gillies, Esq.

It was the beginning of March 1974, the last time the legislature would elect a Justice of the Supreme Court. The 1974 amendments to the Vermont Constitution would soon require judges and justices to be chosen by the Governor, after nomination by the new Judicial Nominating Board. But for one more time, the legislature would elect a Justice of the Supreme Court.

As Chief Superior Judge, the most senior of the civil judges, William Hill expected he would be elevated to the high court. With the exception of 1914-1915, that had been the rule for many years.^[1] As vacancies occurred on the high court, they would be filled by the longest-serving trial judge, not because the constitution or the law dictated it, but because that was the order of things. Vermont used to be ruled by many unwritten orders.

The legislature had elected Hill to the Superior bench in 1959. He had seven years of seniority over Judge Robert Larrow, who had been appointed a Superior Judge in 1966 by Governor Philip Hoff, and then elected to consecutive two-year terms by the legislature. Franklin Billings, Jr. was the third most senior Superior Court Judge, appointed by Hoff to the civil trial bench in December of 1966.

Tradition did not hold in March of 1974. Judge Robert Larrow won the race in the legislature. The vote was Larrow 89 to Hill 82. The Burlington Free Press explained that Larrow had the solid support of the Democrats, joined by a “loose coalition of conservative Republicans, led by Speaker [Walter] Kennedy.”^[2]

The Court in 1974 consisted of Chief Justice Albert Barney, Milford K. Smith. F. Ray Keyser, Sr., Rudolph J. Daley, and newly-elected Robert Larrow. Justice Keyser retired on June 1, 1975, and Franklin S. Billings, Jr. was appointed by Governor Thomas Salmon to fill the vacancy, another breach of tradition. Justice Smith retired on April 30, 1976 and at last William Hill was appointed a Supreme Court Justice, a second Salmon appointment.

The court remained intact for more than four years until October 31, 1980, when Justice Daley retired, and Governor Richard Snelling appointed Wynn Underwood to replace him on the high court. The next year, effective August 31, 1981, Justice Larrow retired. Governor Snelling appointed Louis P. Peck in his stead. Justice Hill re-tired April 1, 1987.^[3]

Justice Larrow served a total of 15 years and three months as a judge or justice, including seven years and six months on the high court. Justices Larrow and Hill’s tenures overlapped for five and a half years.

Inquiry

In the summer 2019 issue of the Vermont Bar Journal, an essay entitled “Politics and the Court” attempted to define what constitutes a conservative judge, and to investigate whether the Chief Justice Sherman Moulton’s Republican politics showed through in his published opinions. This month, we look at the same question from the left, using the works of Justice Robert Larrow Could we lift the veil and see the political heart of this judge?

Politics

Robert Larrow was not a Republican. He was a determined Democrat, with a long history of involvement in statewide political campaigns both as a candidate and as a spokesman for the party. He had run for Governor at the unripe age of 37 in 1952 against Republican Lee Emerson and won nearly forty percent of the votes, more than any Democrat in Vermont history had ever earned. He had run for other offices after that, never prevailing, but always making the races competitive. His campaigns helped inspire his minority party to turn it-self into a majority party, solidified by the elections of William Meyer in 1958 as U.S. Representative and Philip Hoff’s gubernatorial victory in 1962.^[4]

Larrow was the second Democrat to be elected or appointed to the high court. The first was Isaac Fletcher Redfield, who served on the court from 1835 to 1860, the last twelve years as Chief Judge.^[5] Larrow was a Roman Catholic of French descent. His political affiliation and his religion were important components of his character.

Robert Larrow was born in Vergennes, on April 27, 1915, attended local schools, later earned a B.A. from Holy Cross College (1936) and an LL.B. from Harvard Law (1939). His first political race was for Burlington City Attorney, won in 1944, beating Theodore F. Hopkins, a Republican who had held the post for 23 years.^[6] Larrow remained City Attorney until 1963. He represented Burlington in the House (1949-1951) (as a Democrat) and was chair of the State Liquor Board (1964-1966). Elective office otherwise eluded him, but did not silence him.

Larrow had a sharp wit. In his race against Emerson in 1952, he criticized the Republican leadership for its allegiance to the Proctor Marble Company. “When the dog barks in Proctor,” he said, “the tail wags in Montpelier.”^[7] He ran an ad that year in the Free Press: “Why you should support the candidacy of Robert W. Larrow for Governor of Vermont: He is young, progressive, capable of providing the real leadership Vermont needs.” He lost that race, as well as the 1962 contest for Attorney General, and for Mayor of Burlington the following year. He came close to winning the race for Attorney General in 1962.

In 1954, he publicly defended his party, while giving an elbow to the Republicans. He charged Republicans with “100 years” of “drifting and dreaming.” He agreed with the criticism that Democrats were a “party of malcontents.” He said, “Of course we are not content. We are discontented with decade after decade of state government without leadership.”

Republicans, he said, were keeping Vermont “at least one, and probably two, decades behind the progress of its sister states.” He predicted the end of Republican rule. “The people of Vermont are Republicans not by prejudice or bias, but by habit. That habit can be broken. Perhaps not overnight, but it can be broken and we w ill break it.”^[8]

In 1962, he said, “One-party rule leads to nothing but stagnation.” He argued that 106 years of “heel dragging and a reluctance to institute needed measures of reform” was enough.^[9] Of the office he sought he said, “The [Attorney General’s] office was created to represent the state and its people and not simply to serve as the agent and rubber stamp of the governor’s office. The office is perverted when impelled by executive pressure.”^[10]

After he was appointed to the bench in 1966, Robert Larrow was not active in the Democratic Party. Becoming a judge meant being shorn of party politics, at least publicly. Upon his retirement, in the summer of 1981, The Brattleboro Reformer reported Larrow was “noted for his intellectual contributions to the high court.” Chief Justice Barney praised “his matchless intellectual contribution to the content of law, both in his own opinions and in his comments on those of the rest of us.” The reporter wrote how some “have viewed Larrow as one of the most liberal members on the bench, but [the Chief Justice] said there is little difference in political philosophy among the jurists.” Governor Snelling praised him, saving, “He has compiled an impressive record as a jurist both on the Superior and Supreme court benches. All the people of Vermont are indebted to him.”^[11] Phil Hoff said there may have been better lawyers, trial judges and Supreme Court justices, “but I have not happened to meet them.”^[12]

At the time of his retirement, Justice Larrow gave an interview with Professor Samuel Hand. He was asked why he ran for an office in 1952, taking “the nomination in the sense that you would not be merely a token candidate but someone who would campaign actively and apparently make a genuine effort to win, although I suspect you knew you weren’t going to win?” Larrow answered, “Well, I guess one reason would be personal. That’s the way I do things generally. I get into them; I really get in.”^[13]

In that interview, Justice Larrow defined what it meant to be a liberal, describing Harland Howe, a Democrat candidate for Governor in 1912 and later a Superior judge. Howe was a liberal, he said, “in the sense that he was completely devoted to the cause of the little man, both on the bench and off it.”^[14]

Would that label apply to Justice Larrow? Let’s look at what he wrote.

Justice Larrow wrote more than 250 decisions in his seven years on the Court. In retirement, he returned (specially assigned) to sit on approximately a hundred more cases, the last of them in 1986, and wrote another half dozen opinions. There is no question about who wrote a Larrow decision. His voice is present in every opinion.

Dissenting and Concurring

A justice speaks personally through a dissenting or concurring opinion. There the first person singular is an accepted pro-noun.^[15] Justice Larrow dissented six times during his years on the high court. Just six months in his seat, Larrow fled his first dissent in an appeal of a complicated income tax issue. He didn’t dissent from the decision itself, but felt strongly enough to express his disappointment that the majority had relied on an earlier decision that Larrow felt was plainly confusing and should be overturned. He also found fault with imperfection in the calculation of the money at stake. “The findings and conclusions below set forth the formula used by the Commissioner in making the computations required by the previous opinion. I do not agree to its accuracy, nor do I understand the majority opinion to expressly endorse it. But its accuracy was not put in issue, either below or in this court, and is therefore not for determination.”^[16]

A little sarcasm entered his next dissent, in Simpson v. State Mut. Life Assur. Co. of America (1977)...