Editor’s note: This story was updated at 4:30 p.m. to include comments from Gov.-elect Phil Scott.
MONTPELIER — The chairman of the Senate Judiciary Committee has filed a friend of the court brief with the Supreme Court defending Gov. Peter Shumlin’s authority to appoint a Supreme Court justice before he leaves office on Thursday.
Sen. Dick Sears, D-Bennington, a close friend and political ally of Shumlin, submitted the legal argument ahead of a Tuesday hearing scheduled by the state’s highest court to determine if Shumlin can make the appointment. Sears is asking the court to dismiss or deny the petition filed by two lawmakers challenging Shumlin’s authority.
“Once the vice chair of the committee got involved I thought the chairman ought to get involved,” Sears told the Vermont Press Bureau.
Shumlin is seeking to replace Justice John Dooley, who announced in September that he was not seeking retention. Dooley will not leave the bench until April 1, however.
Rep. Don Turner, the House minority leader, and Sen. Joe Benning, the Senate minority leader and vice chairman of the Senate Judiciary Committee, have filed a petition challenging Shumlin’s authority to make the appointment because Dooley will not leave the bench until after Shumlin leaves office.
Sears’ brief asserts that the petition filed by Turner and Benning is not an appropriate matter for the court to resolve because “it is based on a policy disagreement, not on the Governor’s lack of authority to act.” Shumlin, as governor, has the authority to appoint a replacement to Dooley because the Judicial Nominating Board has acted and forwarded the names of qualified candidates.
“Importantly, the Judicial Nominating Board does not have discretion to delay performing this process based on considerations of fairness or practicality in light of, for example, the impending inauguration of a new Governor or an extended period between the incumbent’s announcement of retirement and his actual date of retirement,” Sears’ brief states. “Rather, the statute commands the Board to submit a list of well-qualified candidates to the Governor, whoever may be in office at the time, when an incumbent judge declares that he or she will not seek another term. The strictness of this provision is an important measure to prevent the appointment process from being infected with, or even appearing to be infected with, delay, gaming, or partisan politics.”
Sears notes several times in the past when a governor has made a judicial appointment before the sitting judge leaves the bench, including in 1887, when Justice William H. Walker did not officially resign until Sept. 24, but James M. Tyler was named to replace him on Sept. 17. In 1975, Justice F. Ray Keyser Sr. retired effective June 1, while Franklin F. Billings was nominated on April 23 and took office on June 2.
More recently, District Court Judge Edward Cashman declared his intention to not seek retention on Sept. 1, 2006. Former Gov. James Douglas nominated Cashman’s replacement on Jan. 25, 2007, even though Cashman would continue to serve through the end of his term.
Sears’ memorandum of law asserts that the court would be rewarding a political move by striking down Shumlin’s authority to act.
“While petitioners may cast Governor Shumlin’s choice to act on the Board’s list of candidates as a politically charged move, a decision to strike down this practice as unconstitutional would reward a political crusade and, by way of precedent, permanent inject partisan politicking into the appointment process. Whether it is wise or prudent for the Governor to appoint a successor before an outgoing judge’s actual day of retirement is indeed a political question, and thus must be left to Legislature — to refine the appointment process within the bounds of the Constitution — or to the ballot box.”
Sears’ memorandum of law notes that Shumlin’s term overlaps by one day with the new, incoming Senate. Shumlin will leave office on Thursday, while the new Senate will convene and be sworn into office on Wednesday. If Shumlin were to nominate a replacement for Dooley on Wednesday, the nomination process would not be complete until the Senate confirms the appointment, which would occur later in the legislative session, closer to the date that Dooley leaves the bench.
“Such a process would, even under Petitioners’ restrictive definition of the word ‘vacancy,’ would result in no constitutional transgression. Thus, Petitioners’ petition for extraordinary relief is unfounded,” the memorandum states.
Finally, Sears’ argues that the Judicial Nominating Board and the Vermont Senate are crucial parties in the nominating process and must be parties to the petition for the court to grant relief. Because neither are parties to the petition, Sears asks the court to dismiss or deny the petition.
The court is scheduled to hear oral arguments Tuesday afternoon.
Should the court rule against Shumlin and in favor of Turner and Benning on the basis that the vacancy does not occur until Dooley leaves the bench, Sears said the court would, in effect, also prevent Scott from naming a replacement until then. That would leave the Senate little time to confirm the nominee before the Legislature adjourns for the year, he said.
“The reality is that if the court says that the vacancy doesn’t exist until Justice Dooley actually leaves on April 1, I would assume that Phil wouldn’t be able to appoint someone until after April 1,” Sears said.
Republican Gov.-elect Phil Scott, who will be sworn into office Thursday, said he supports the petition filed by Turner and Benning. However, Scott said he is not involving himself or his transition team in the legal maneuvering because he promised during the campaign that he would not try to block or challenge Shumlin’s authority.
“I do think that it’s appropriate for them to petition the court to ask for clarification. It is a gray area. I think it’s just appropriate … that the court decides this once and for all. This isn’t a partisan issue. This could come up during future transitions, so it would be good to get the clarification,” he told the Vermont Press Bureau Monday.
Scott, who said it is “unfortunate” Shumlin is seeking to make the appointment, said the meaning of vacancy should be clarified by the court, as Turner and Benning are seeking to do.
“I think that should be clarified. Gov. Shumlin may be correct in his assertion that he has the ability to appoint whenever there is that trigger, but, I think at the same time it could be argued that it isn’t a vacancy until the person is actually leaving. I think it does muddy the waters a bit more because of this transition and makes it even more difficult. We probably wouldn’t be having this discussion if there wasn’t this change,” Scott said.
Read the brief below: