Arguments Before Vermont Supreme Court Today On Governor’s Ability To Fill Court Vacancy

Jan 3, 2017

The Vermont Supreme Court will hear arguments this afternoon in a case that challenges outgoing Governor Peter Shumlin’s ability to appoint a new justice months before the position is actually vacated.

Vermont Supreme Court Justice John Dooley announced in September he would not seek reappointment when his current term expires in March. The Judicial Nomination Board has recommended six people to the governor as replacements.

Republican leaders in the Vermont Legislature sued, saying the outgoing Democratic governor cannot make an appointment when the seat is not yet vacant.
Senate Minority Leader and vice chair of the Senate Judiciary Committee, Republican Joe Benning, explains that in Vermont’s three-step process the judge announces his intent to leave.  Then, the Judicial Nominating Board creates a list of qualified candidates. And finally, the governor interviews and chooses a candidate who is recommended for Senate confirmation.  Benning notes that the state constitution mandates that the governor act when a vacancy occurs in the position.   
“At this point in time there does not appear to be a vacancy. The judge is still occupying his seat. He's listening to cases. He's debating with the litigants. He's writing opinions. He's supervising staff and he's getting a paycheck. There's obviously a change in administration. It's a grey area of law. And our opinion is it should be the new governor that has the power to do that because he will be the governor in the seat at the time that the vacancy actually occurs. And that's the actual Constitutional language as to when that recommendation is supposed to be made.”

Chair of the Senate Judiciary Committee, Democrat Dick Sears, filed a friend of the court brief supporting Governor Shumlin’s ability to make the appointment.  The first point he lays out in the amicus brief is that the challenge is based on a policy disagreement, not on the governor’s authority to act.  He says by challenging Governor Shumlin’s ability to appoint the next justice, the petitioners have raised the issue of when a vacancy actually occurs. “We have a system of retention in Vermont and a judge elects to be retained or not at the end of a six year period unless they resign earlier. Basically Justice Dooley said he wasn't going to stand for retention and his term would be up April 1st. That opened the question of when does a vacancy occur? Does it occur when the person announces or does it occur when they actually vacate the post? So if Senator Benning and Representative Turner are successful the vacancy would not occur until April 1st when Justice Dooley actually steps down. That forces Governor Scott and the Judicial Nominating Board to go through the whole process all over again.”

Middlebury College Professor Emeritus of Political Science Eric Davis notes that the court must also consider how much of the argument is partisan politics versus a valid legal concern. “Basically this is uncharted territory. So the Supreme Court really doesn't have very much precedent to go on.  Justice Dooley announced his retirement back in September but the retirement wouldn't be effective until the end of March. So the question is whether there is a vacancy on the Supreme Court now that Governor Shumlin can fill before he leaves office in two days or whether the vacancy does not occur until the retiring justice actually leaves the court which would mean that Governor Scott would fill it later in the spring.”

The hearing is set to begin at 1 pm.  Democratic Governor Peter Shumlin’s last full day in office is Wednesday.  Republican Phil Scott will be sworn in as governor Thursday.