Legislative Committee Cross-Examines Two Vermont Judges

March 12, 2011

Vermont: On Friday afternoon March 11, in Montpelier, Vermont, two judges faced very different situations, each one sitting before a legislative committee, being cross-examined about their courtroom behavior and wondering the status of their livelihood.

Superior Court Judge Mark Keller and Judge Michael Kupersmith both faced over an hour of questions and appeared remorseful as an eight-member panel prepared to vote on whether or not they should be able to serve another six-year term on the bench.

All judges in Vermont must face this judicial retention process once every six years after they have been appointed, but Friday, March 11th's session was not the norm.

"These two judges have had more reports than most. This was a lengthier duration than I've seen." stated Senator Alice Nitka, the chairwoman of the Legislature's Judicial Retention Committee.

Judges are reviewed by the committee based on anonymous surveys by lawyers and comments from the public. Judge Keller and Judge Kupersmith are among ten judges, including all five of the state Supreme Court Justices, whose appointments are now up for review this year. The panel is expected to vote on Tuesday, March 15th, on whether or not to recommend them to the full Legislature, which is then scheduled to vote on March 30th.

"I'm trying to explore what it is I do that offends people," Keller told the committee. After watching a tape of Judge Keller in court, Representative Tom Koch, found Judge Keller's behavior unacceptable.

"My reaction was you went to the Judge Judy school of judicial demeanor. This is not entertainment." Tom Koch stated.

Judge Keller has been a judge since 1999, but he was recently reprimanded by the Vermont Judicial Conduct Board, which found Keller "excessively confrontational" with a couple and their lawyer. Judge Keller had agreed to work with a mentor judge and to receive counseling.

"I've been working to try to improve the last two years. I thought I was doing better. I did make some changes. Obviously, my self-view is wrong." Judge Keller told the legislative panel on Friday, March 11th.

Judge Kupersmith had also faced questions about his courtroom behavior and demeanor. On Friday, Keller voluntarily provided a plan to the committee to establish better working relationships with the lawyers who appear before him in his court. He now plans regular meetings with the lawyers in Chittenden County in hopes of seeking their valuable input on his courtroom behavior. "I laid my cards on the table. I decided that I had often become a person I didn't like very much." Keller stated to the legislative panel and lawmakers on the committee let Kupersmith know that they were very impressed with his plan.

"I feel like you've looked at yourself," said practicing attorney Senator Joe Benning. Senator Benning does consider Kupersmith a brilliant legal mind, but told Kupersmith, "You came across presenting yourself as someone who was very frustrated. I would almost say burned out."

Senator Alice Nitka also found Kupersmith's plan only outlined two years of mentoring with another judge. She expressed her concern about the six-year term, saying, "I guess I'm concerned about the other four years."