Vermont Bar Journal, Vol. 40, No. 2 Vermont Bar Journal, Summer 2019 | Page 15

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The majority in State v. Baker (1947) held
that “only physical means for compelling
a person to give evidence against himself
in a criminal prosecution are forbidden by
Chapter I, Article 10 of the Vermont Consti-
tution.” Chief Justice Moulton dissented,
arguing that a moral compulsion is equal-
ly prohibited. “I construe this provision of
our Constitution to forbid compulsion of
any kind, moral as well as physical, which
may cause a respondent against his will to
give evidence as a witness in a prosecution
against him for a criminal offense. Moral
compulsion can be just as strong and just
as hard to resist as physical compulsion.” 41
In 1957, Baker was overruled. Recogniz-
ing that the statute on which the holding
was based had been amended in 1955,
the high court in State v. Goyet (1955) ex-
plained, “It seems plain from the history of
the legislation and our decisions in connec-
tion therewith, that it was the intention of
the Legislature, by this amendment to re-
move the dilemma to which we have re-
ferred in which the respondent was placed
by the 1935 amendment. Referring to that
amendment, Chief Justice Moulton in his
dissenting opinion in State v. Baker, supra,
115 Vt. at pages 113–114, 53 A.2d at page
64 said, ‘Before its amendment P.L. § 2383
required that juries be instructed that the
refusal of a respondent to testify must not
be considered by them as evidence against
him. It cannot be assumed that this admo-
nition was not given due weight and atten-
tion by those to whom it was addressed.’” 42
Chief Justice Moulton also dissented in
Kinsley v. Herald & Globe Ass’n (1943), a li-
bel case where the jury had awarded dam-
ages for statements made in a newspaper
article, a judgment affirmed by the Court.
The Chief explained, “I would hold that the
article may be reasonably understood as
an expression of the opinion of the writer
concerning tort actions, arising from au-
tomobile accidents, between near rela-
tives, where the damages recovered must
be paid by liability insurance companies,
and, without the imputation of anything
wrong or illegal in the conduct of the plain-
tiff in the particular instance, calling atten-
tion to the danger of collusion and fraud in
proceedings of this nature.” “So long as a
newspaper writer states his actual opinion,
on a matter of public concern, based upon
a true statement of facts, and without the
sole purpose of causing harm to another,
he cannot be held liable for what he writes
and causes to be published, although it
may be defamatory.” 43
times in his nearly 23 years as a justice.
Although he did not live to appreciate it,
three of the four cases were eventually re-
versed on the grounds common to the
ideas raised in his dissents.
Sherman Moulton’s first dissent began
with a confession of humility, in Universi-
ty of Vermont and State Agricultural Col-
lege v. Ward (1932). 35 “I regret that I cannot
agree with the majority in the disposition of
this case. It is with all diffidence that I find
myself unable to reconcile my views with
those of my brethren, whose mature opin-
ion cannot fail to impress upon me the high
respect which it deserves and the temerity
of a dissent from it. Yet my belief in the un-
soundness of their conclusion prompts me
to state the reasons for my objection.”
The justice could not agree with the ma-
jority’s understanding of lease lands. “We
have here a conveyance which is valid un-
der the common law as regards private
lands and valid under the statute as regards
public lands. If, in one case, the instrument
conveys a conditional fee, it is difficult for
me to understand why it does not do so in
the other; and why exactly the same lan-
guage should be construed to mean one
thing in one instance, and the opposite in
the other.”
In 1946, the Supreme Court criticized the
Ward decision in Colette v. Town of Char-
lotte. 36 The court in Ward had ruled “that
a possibility of reverter is incapable of
alienation or devise. The question at issue
in that case was whether the instrument
through which the defendant claimed title
was a lease or a conveyance of a base or
determinable fee. The alienability of a pos-
sibility of reverter was not in issue or rele-
vant to the issue presented, and the state-
ment above referred to is not to be consid-
ered authoritative as to a possibility of re-
verter resulting from the creation of a qual-
ified or determinable fee.” 37 The line was
dictum, and of no binding value, but paral-
leled Moulton’s criticism of Ward.
Partition was the subject of Billings v.
Billings (1946). The majority concluded
that when two parties own equal shares in
a piece of property and both wish to take
assignment of the other’s share, the stat-
utory scheme requires public sale of the
property. 38 Chief Justice Moulton dissent-
ed, saying the majority’s decision “savors
altogether too strongly of judicial legisla-
tion.” 39
In 2002, the Supreme Court overruled
Billings and the Chief’s dissent finally found
a majority. In Wilk v. Wilk, the court held
“that, under the statutory scheme, a trial
court may consider the relative equities of
multiple parties wishing to take assignment
of an outstanding interest in a parcel and
assign that interest to one of the parties,
instead of ordering a public sale.” 40
Moulton’s greatest decisions
If there was a contest to name the great-
est decisions of a justice, it’s only fair we
should insist on criteria. This shouldn’t be
THE VERMONT BAR JOURNAL • SUMMER 2019
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