Failing to uphold rule of law
The Vermont Supreme Court’s recent ruling on legal trails diminishes our democracy by failing to uphold rule of law. The plan language of Title 19 confers trail maintenance authority on landowners, not towns, by stating that towns have authority to maintain highways but omitting any mention of town authority to maintain trails.
In cases involving similar statutory schemes, courts routinely interpret this kind of glaring legislative omission as a decision to not confer authority. In its opinion the Court did not acknowledge the relevant statutory provisions, much less refute their relevance. Instead, the Court implied from the legislature’s use of the general tern “right of way” that towns have trail maintenance authority, notwithstanding the legislature’s clear, specific decision to not confer this authority on towns.
A ruling upholding current law would have compelled the Vermont legislature to confront the fact that last year’s trails legislation unconstitutionally violates property rights of hundreds of Vermonters. To help the legislature avoid having to deal with this uncomfortable (and expensive) reality, and to produce a politically popular result, the Supreme Court abdicated its responsibility to uphold rule of law. Some welcome this ruling, but the diminishment of our democracy is a loss for all.