Diane Bush was in big trouble. She had no money, no place to live, was pregnant with triplets, had another daughter, and was in a relationship with Scott Heaton. In 2000 she applied to the Bennington Housing Authority for an apartment. She swore she had no criminal record, which would disqualify her. Mr. Heaton wasn't required to make the same oath. But, Bush and Heaton filed authorizations for the BHA to do a criminal record check. It turned up no Vermont Convictions. The family was given a unit, and lived there trouble free for five years. In 2005 BHA expanded its criminal record check and found Mr. Heaton had been convicted in New York of burglary and sale of drugs some 10 years earlier. BHA evicted the entire family for fraud in the application. The trial court upheld the eviction. Bush, through Legal Aid, appealed.

A sharply divided Supreme Court reversed. Chief Justice Reiber, Associate Justices Skoglund and Johnson found that BHA hadn't proved its case by clear and convincing evidence (the standard to prove fraud). There was no proof that Ms. Bush, actually knew Heaton was a felon when she applied. And, she and Heaton gave BHA authority to do a record check. BHA could have found the facts unknown to her. Moreover, there was no harm to BHA because the family had lived there without problems for five years.

The majority also ruled that BHA had abused its discretion by evicting without considering 5 years of trouble free tenancy, or by allowing Heaton to leave and having Bush stay.

Dissenting Associate Justices Burgess and Dooley were apoplectic! Boa's "zero tolerance" policy for fraud, they argued, was not an abuse of discretion. It is based on Federal Law championed by President Clinton to improve public housing by sending a clear signal to drug dealers and gangs to stay away. The decision correctly punished dishonest people and rewarded honest ones who were on the long waiting list for apartments. The Vermont court, they argued, should not second guess trial judges, and adopt a case by case review of housing decisions better made by public housing administrators based on federal policy.

Conservatives rail against "result oriented" judges who make decisions satisfying their own sense of justice rather than following the law as established by the Congress or legislatures. Others cheer when judges show they have a heart. The split Court mirrors our society. Bennington Housing Authority v. Bush 2007 VT 60.