Eleven years ago Fred Allen became the first Chief Justice in Vermont history to present a State of the Judiciary address to a joint assembly of the Vermont Legislature. He said on that occasion that, "it is my hope that this will be the beginning of a useful and necessary tradition."

Immediately after that statement problems with the Legislature's sound system made much of the rest of the speech inaudible. Having some familiarity with the then Speaker Ralph Wright's lack of enthusiasm for use of the House Chambers by the judiciary, I am not entirely persuaded that the technical difficulties were coincidental. In any event, the "tradition" Chief Justice Allen attempted to establish has not yet taken hold.

In fairness to former Speaker Obuchowski who graciously enabled me to use the House Chambers when I was sworn in as Chief Justice, I had planned - subject to a mutual invitation by the Speaker and Senate President to present a State of the Judiciary address to a joint legislative session in January of last year. Three weeks before, however, we issued Baker v. State.

The invitation to address a joint session has since been delayed - I am sure by "technical difficulties."

I am delighted, therefore, to accept the Vermont Bar Association's invitation to return today to a forum that has long been used by Vermont Chief Justices to share some thoughts about the state of the Vermont judiciary. As my predecessor said to this association in his first state of the judiciary address:

"I believe it has been the custom and tradition in this jurisdiction for the Chief Justice to set forth the problems of the Judicial System and explain why the Bar is to blame for them."

My review of the state of the judiciary remarks of my predecessors reveals, of course, that each Chief Justice - far from assessing blame - sought to encourage constructive dialogue between the bench and the bar. Yet, as always with one of Fred Allen's wry observations, there is something to the "us v. them" perspective that occasionally seeps into at least the informal conversation among lawyers about the bench, and among judges about the bar.

I must confess this perspective always catches me somewhat by surprise - I think of myself as a lawyer before I think of myself as a judge - and as a Vermonter before I think of myself as either. Each of us here has chosen a life in the law - and chosen to live it in Vermont.

It is from that perspective that I seek to address you - and it is from that perspective I hope you'll hear me.

Every State of the Judiciary speech with which I am familiar - whether it be Vermont or any other jurisdiction invokes a similar litany of problems: Rising caseloads; inadequate resources; a society that increasingly seems to believe that differences of opinion provide standing to litigate.

I can certainly deliver that kind of State of the Judiciary speech - in essence, a reiteration of my testimony to the Appropriations Committees. The program descriptions, case statistics, and the linkage of our appropriation requests to future judicial challenges are comprehensively set forth in the narrative we submit to the Legislature. It is important reading and I will make available copies of it for those whom I disappoint by not using it as the subject of my remarks today.

For this noon, I choose to speak not of budgets but of beliefs.

I have an acquaintance - a former Attorney General of Arkansas as a matter of fact - who used to ask of colleagues about to give speeches: "Are you preaching or are you promising?"

I'm preaching today.

The "state" of the judiciary is, of course, seldom thought of in a geographical sense. Yet for the moment I invite you to think of it in exactly that way.

Boundaries are the defining attribute of a geographical state. What then can be observed - in this first year of the third millennium - when we survey the boundaries of this "state of the judiciary?"

Most striking - especially if one compares the boundaries of our "judicial state" to 50 or 15 years ago - is the confusion over where the lines are. A half century ago, the inability of a lawyer or a judge to define what constituted a cognizable case, the procedures to be followed, and the relief to be granted said much more about the lack of preparation of lawyer or judge than it did about the lack of precision in judicial boundaries. A decade and a half ago when Chief Justice Allen gave his first State of the Judiciary speech to this Association, the boundaries of the judicial state did not encompass family courts, nor magistrates, nor hearing officers, nor the environmental court; nor to any meaningful extent alternative dispute resolution, nor pro se litigants, nor drug crime, nor terminations of parental rights nor prosecution of child sexual abuse, nor domestic violence. And notwithstanding the collective experience and wisdom of the audience that listened to the address of Fred Allen, had he used 15 years ago the word "internet" or the phrase "civil unions," definitions would have been hard to come by.

The extent of boundary change - the degree to which the "geography," if you will, becomes virtually unrecognizable is seldom apparent to those who are living through it - it is only when time and space separate you from the boundaries that the extent of the change becomes clear.

When I was 16, I accompanied my father on a trip from Vermont back to the California ranch on which he had been raised. It was his first return to the San Fernando Valley since his youth. He remembered a bunk house near a pristine lake, surrounded by 5000 acres of rolling hills and green valleys. I saw a small shed on 5 acres smack in the middle of a flattened landscape criss-crossed by freeways, saturated with strip malls, tract housing - and a population - even forty years ago that exceeded two million. My dad said only, "It used to look different."

That is almost certainly what one would say about the Vermont "judicial state" if one compared the "geography" of today with the "geography" of 50 years ago. And just as an explanation of what had brought about the extraordinary alterations to the California landscape would have required a comprehensive examination of nothing less than the changes in modern American society, so too would an explanation of why the state of the judiciary in Vermont in 2001 looks so different than 1951 require a perspective that those of us living through the changes cannot fully have.

Most of us, I suspect, would feel more comfortable with a more exact judicial geography. When one crosses the Connecticut River into Vermont there is, an immediate sense of gratification in being in a place you can know and name. But law in the 21^st century is, unlikely to provide the clarity of a river dividing the state of the judiciary from the state of the society.

The boundaries of the judicial state will continue to be in flux. And the survey parties that mark the new geography will not be comprised only of attorneys and judges.

By observing a state of the judiciary in which boundaries are blurred, and acknowledging that the participants who will have a part in clarifying the judicial "geography" of the future will not be limited to attorneys and judges, I do not seek to minimize the significance - indeed the necessity - of judicial and bar participation in leading the "New Survey."

In fact, it is precisely because a new society will hew neither to the old boundaries nor old lines of authority that we must think anew about judicial leadership.

By "judicial leadership," I mean something far greater than can be provided by the institutional authority of a judiciary or its Chief Justice.

Sixty years ago Winston Churchill described the authority of a leader in a traditional hierarchical structure.

"At the top there are great simplifications. An accepted leader has only to be sure of what is best to do, or at least to have made up his mind about it. The loyalties which center upon number one are enormous. If he trips, he must be sustained. If he makes mistakes they must be covered. If he sleeps, he must not be wantonly disturbed. If he is no good, he must be pole-axed. But this last extreme process cannot be carried out every day and certainly not in the days just after he has been chosen."

That is not a description of the authority of a Vermont Chief Justice.

In simpler times any person of ambition and decision (a universe in which I include myself) would gladly have run the risk of being "pole-axed" for the benefit of "being in charge."

The question "who's in charge" is a reasonable one when one is seeking to determine accountability for administrative decisions. I have made no secret of my judgment that the judicial branch would be better served by a management model that vested greater administrative authority in the Chief Justice.

But although the question, "Who's in charge?" is an appropriate inquiry when confronting the less significant issue of administration, it is not the right question for those seeking answers to the fundamental issues we face as a judiciary and a society.

And certainly "who's in charge?" is not the right question for the 21^st century when leadership predicated on authority is being rejected in nearly every sphere of human endeavor.

Ronald Heifetz in his profound study entitled "Leadership without easy answers" writes:

"In a crisis we tend to look for the wrong kind of leadership ... someone who can make hard problems simple"

Professor Heifetz goes on to observe - and here he is talking about responding to challenges like providing justice in a fragmented society:

"Making progress demands not just someone who provides answers from on high ... but instead leadership that promotes our adaptive capacities, rather than inappropriate expectations of authority"

The work of this Association in following up the VBA Citizen's conference; the recommendations of the commission on the Future of Vermont's Justice System; the bench-bar committees; the community justice centers; the family court initiatives and literally dozens of other strategies and innovations reflect something more than a search for solutions: they reflect an implicit acknowledgment that leadership in the 21^st century means influencing the community to face its problems.

The response to that exercise of leadership inevitably involves people's conception of themselves, their roles, and most importantly, their ideas about how social systems make progress on problems.

That is why I believe the most salient question is not "who's in charge?" but rather "what can one do to mobilize people to confront difficult problems?"

I do not mean to suggest that leadership and particularly leadership of the judiciary - does not require answers to both questions.

I do mean to suggest that an answer to the question "who's in charge" does not answer the question "how does one mobilize a society to confront and solve fundamental challenges."

At this point, an old habit developed from years of concern about how the media would report my remarks as an elected official asserts itself. I would always try to anticipate what the worst headline could be. I can see what it might be on my remarks so far: Chief Justice says Judiciary is Shapeless, Leaderless."

The point I seek to make is not, of course, that the state of judiciary is without shape or shapers, but that - as I have written in the Future Commission's Report on the Vermont Justice System:

"For the foreseeable future, social changes profound enough to be characterized by one scholar of our times as the "Great Disruption" will continue to buffet individuals, communities, and the institution that seek to serve both."

Upon what then can we build if the old boundaries are being erased, the old authority eclipsed? For one "that heareth and doeth not is like a man that without a foundation built a house upon the earth; against which the stream did beat vehemently, and immediately it fell; and the ruin of that house was great."

I return to that which brings us together this day - the "living of a life in the law."

For each of us are heir to the single most important development of the last 1,000 years: the rule of law defined as a judicial regime in which everyone is equal before the law, and everyone - and every institution is subject to it.

There is in Annapolis, Maryland in front of the building which used to house the Court of Appeals, an incredible statue of Thurgood Marshall. It is not a depiction Marshall the judge - whom we see in our mind's eye as the heavy set sedentary figure of the Supreme Court - but of Thurgood Marshall, the advocate striding purposefully away from the Court House - determined (and the greatness of the sculpture is that you can see that determination, feel that purpose) to his next legal battle. The statue is intended not only to honor the life of Marshall - but a moment in time, his successful argument before the Maryland Court of Appeals in the 1936 case of Murray v. Maryland in which the Court ruled that the state must desegregate the University of Maryland Law School.

There are two historical ironies in that setting. One is that although Marshall won that case, he considered it a setback because it was the University of Maryland Law School case, that Marshall had hoped would put before the United States Supreme Court the separate but equal issue. It was almost two decades later before Marshall was able to do so in Brown v. Board of Education. The greater irony is that to place the statue of Thurgood Marshall in front on the old Court Appeals, the statue of Chief Justice Roger Taney - a Maryland native and author of the Dred Scott opinion - was moved out of sight of the court house.

I have the Marshall statue in mind because I have recently returned from a conference of Chief Justices held in Maryland.

At the historic Baltimore City Courthouse our host, Chief Judge Bell of Maryland's highest court (the Court of Appeals) was introduced. In remarking that Judge Bell was only the 3^rd Chief Judge in the history of Maryland to serve on all 4 levels of the Maryland judiciary (much of it in the Courthouse in which we were meeting), our introductory speaker observed that Judge Bell's first exposure to the Baltimore City Courthouse was as a criminal defendant. As a young man of 16, he had been arrested for attempting to integrate an all white Baltimore restaurant. His defense lawyer was Thurgood Marshall.

It is impossible to be at an event like the one I have just described and not feel the wind of history. Think of it, within one lifetime Judge Bell created a path that took him from a society that used its entire judicial apparatus to prevent a 16 year old black youth from eating with whites to a society that placed him at the head of the judiciary.

Think of the alteration of judicial boundaries that single evening and that single life epitomized. I was privileged to be there, and proud to be a lawyer.

It is not given to most of us to live lives in the law as extraordinary as those of Thurgood Marshall or Judge Bell.

But who among us - if we believe in the law has not had moments of satisfaction - indeed joy - in the knowledge that our own practice of the profession has made some contribution to the pursuit of justice.

A life in the law - especially a life in the law in Vermont is a gift. And a trust.

Six weeks ago, on a Friday afternoon, we heard oral argument in the last case of the January term. The Professional Responsibility Board had recommended a public reprimand in the matter of a lawyer who had - in his own divorce case - written a disparaging and intemperate letter to the trial court. The attorney was before us pro se and in the course of the argument I asked him about the legal implications of a position advanced by the Board. The attorney responded - (respectfully I might add) "your honor, I don't care." And it was clear that he had reached a point in his life where his profession no longer mattered - for all intents and purposes his life in the law was over.

It would have been a singularly depressing way to end the term, but two hours before that argument, I was privileged to be at the memorial service for Joan Bauer - where a life in the law had also ended.

But -- even for those of us who were not lucky enough to know her well -- that service wonderfully captured how much Joan Bauer meant to our profession and how much our profession meant to her. She had lived a life in the law in Vermont: the challenges and achievements, the disappointment and the joy, the friendship and family. Very shortly before her death, knowing the end was near, Joan Bauer was still calling her colleagues urging them to use the law to protect children in immigration hearings. She cared.

To the foundation of faith, family, and community Joan Bauer had added - and added to - a life in the law in Vermont.

"And when the flood arose, the stream beat vehemently upon that house, and could not shake it: for it was founded upon a rock."

If I cannot report to you with precision the future boundaries of our judicial state, I can say, to those of you who share citizenship in our worthy profession that the foundation has been dug deep. May it be said of us that in living our lives in the law we were residents of a state of the judiciary where neither foundation nor faith could be shaken.

Thank you.