KK: You mentioned earlier about precedent and, within Vermont, I can’t find any
workers’ compensation precedents prior to
1977 at the department level. There are the
Supreme Court decisions back to the early
Twenties, but at the department level the
precedents that I am able to put my hands
on start about 1977 with this book by Fox
Publishing. Then the department started
keeping records in binders in 1981 and you
became commissioner in 1984. What kind
of precedents did you rely upon?
JB: The hearing officers would keep
binders and they indexed them by subject
matter. We had a bit of a digest, a homegrown digest, there. I remember looking
up permanent disability. You try an index
word to find where this might have been
addressed before. Sometimes you would
find it and sometimes you would not.
KK: And not using a computerized word
search.
JB: No, we had no computers, of course.
As I said, we were still relying on 3x5 cards.
I would often go back to the staff that was
responsible for reviewing these things and
say, “Have you ever seen a case where
blah, blah, blah happened?” and every
now they would say, “Oh, yes, I remember
Louis Lavigne [you know he was a former
commissioner] had a case and he went in
this direction.” Then we would try to find
that case. Or we ask, “Do you know if Burt
[Louis’s deputy, like a half generation before me] ever had a case involving X or Y?”
And they would say, “I think he did,” and
we would try to find it.
KK: You would have to pull the file?
JB: No, we would try to get an idea.
Sometimes these people would remember the names, if not the clamant they’d remember the name of the employer. We’d
just try to track it down. It wasn’t always
successful. Sometimes you would find it
and you would say to yourself, “What?
How did they reach this result?” So we
would not go in that direction. But, yeah,
precedents could be hard, more of an oral
tradition.
www.vtbar.org
KK: So you were commissioner for about
a little over a year?
JB: I was the deputy for about a year and
commissioner for about a year.
Interview with Justice Brian Burgess
tell me when you are ready and I will guarantee the hearing in sixty days, but if you
ask for a continuance you go to the end of
the list. Suddenly the requests for hearings
dropped. The focus then went to “mediation” as I called it. You have a conference in
front of the deputy and sort of lay out the
lay of the land and try to formulate a settlement. Then, if it could not be resolved and
they did want a hearing, I could guarantee
them a hearing in sixty days. The governor
liked that the backlog disappeared within
six months. I think the practitioners liked it,
too.
KK: And then you followed Chief Justice
Amestoy to the Attorney General’s Office?
JB: Yes, he asked me to be his deputy
there and I went with him for eight years.
KK: What kinds of things did you do at
the AG’s office?
JB: I did environmental crimes, corruption, white color stuff, plus administration.
Bill Griffin was kind of the chief financial/
personnel guy and I would share personnel
responsibilities with Bill. Just trying to restructure the office to make it operate the
way Amestoy wanted it as opposed to the
way it had been in the past. Every attorney general has a different style and different priorities. So, we were getting warrants
for midnight dumpers and taking their
trucks. These guys from Boston, Brooklyn,
and Connecticut. Take their bulldozers and
hide them. We had a warrant for it, but that
would get their attention. We did the Bennington School scandal case with a bunch
of folks down there. Dave Sontag was our
criminal chief and we would all take a case.
I tried to keep my hands in litigation. I
didn’t have very much street crime experience so I stuck to the white collar stuff and
frauds, corruption, and then the environmental stuff.
KK: Then in 1992 Governor Dean appointed you to the district court.
JB: Yes.
in Newport, one in St. Johnsbury. I saw
more comp cases in the Supreme Court
then I did on the trial bench.
KK: Was that mostly in northern Vermont
or did you travel much for that job?
JB: For the most part, I was in the northern tier. I think I was in every court north
of Montpelier. So Chittenden, Grand Isle,
Newport, St. Johnsbury. I did a term in Essex, Hyde Park, occasionally in Barre. I tried
not to sit in my home county.
KK: What I found interesting was that
Democratic Governor Dean appointed you
to the district court, but Governor Douglas,
who is a Republican, appointed you to the
Supreme Court in 2005.
JB: That’s true.
KK: So you could avoid friends and
neighbors.
JB: Friends, neighbors, and their kids.
And I always liked going up to Newport.
I didn’t mind making those drives. Then
when I was chief judge sometimes I would
wind up, well even before that, I would go
down and cover Bennington and Brattleboro. I don’t think there is a court I have
not sat in, but I was mostly in the northern half.
KK: When you were sitting as a trial court
judge, do you remember doing any workers’ compensation appeals at that