MONTPELIER — The Vermont Supreme Court heard oral arguments Tuesday on whether outgoing Democratic Gov. Peter Shumlin can appoint a replacement for one of its members, Justice John Dooley, before Shumlin leaves office on Thursday.
The hearing Tuesday, held in a packed Supreme Court chamber filled with media, lawmakers, statewide elected officials and other observers, was triggered by a petition filed by Rep. Donald Turner and Sen. Joe Benning just before Christmas challenging Shumlin’s authority to name Dooley’s replacement.
The justices made no indication Tuesday afternoon before ending the court session when it would issue a ruling. However, the court is expected to rule imminently in order to settle the matter before Republican Gov.-elect Phil Scott is sworn into office on Thursday afternoon. Should the justices rule in Shumlin’s favor he could then name a replacement for Dooley on Wednesday when the new Senate is sworn in. The Senate would then be called upon to confirm or reject the appointment.
Dooley announced last September that he was not seeking retention and would leave the bench when his term expires on April 1. Shumlin made it clear that he intended to name Dooley’s replacement, surprising many legal observers who assumed the governor to succeed Shumlin would appoint a replacement. But Shumlin called on the Judicial Nominating Board to forward him the names of well qualified candidates, as laid out in state statute, when a vacancy becomes known.
The Judicial Nominating Board, chaired by Republican Sen. Peg Flory, complied with the request. Turner and Benning then filed their petition and the Supreme Court issued an injunction against Shumlin before he could name Dooley’s replacement.
Rep. Janssen Willhoit, who served as one of the attorneys arguing the case on behalf of Turner and Benning, made a simple argument — Shumlin should not be able to appoint a Supreme Court justice to replace Dooley because Dooley will remain on the bench until April 1. He urged the court to “first look at the plain meaning of the word” vacancy. Both Black’s Law Dictionary and the American Heritage Dictionary define vacancy as a place that is “empty” or “unoccupied.”
“As everyone in the room can see, there is no vacancy in the court,” he said.
Willhoit also argued that the Vermont Constitution does not provide Shumlin, or any governor, with the authority to make such an appointment beyond the term of their office.
“If this appointment was made it would infringe upon the constitutional authority of the incoming governor,” Willhoit argued.
Attorney Deb Bucknam, who also argued on behalf of Turner and Benning, cited several court cases from around the country that she said supported their position.
“The courts that have ruled on that very particular issue are unanimous the governor has no power … after the governor’s term ends,” Bucknam said.
Willhoit and Bucknam conceded, however, that the Judicial Nominating Board was right to begin the process of replacing Dooley when it became clear that he was not seeking retention and the deadline to file for retention passed on Sept. 1.
“All the courts say, ‘Yes, the procedure can start but the person who actually makes the appointment or nomination has to have the authority when the vacancy occurs,’” Bucknam told the five-member court.
Assistant Attorney General Benjamin Battles, arguing on behalf of Shumlin, sought to make the case that Turner and Benning had no standing to petition the court because no appointment has been made, thus no injury has been suffered by any party.
But Dooley, whose decision to not seek retention triggered the entire matter, pushed back, saying the case is likely to be heard in the future, if not now.
“Wouldn’t you think it would be far preferable” to decide now?” Dooley asked, suggesting a losing litigant in a decision made by a court including a justice appointed by Shumlin could have cause to claim the court was construed in a unconstitutional way.
Battles told the court that “the case doesn’t turn on the meaning of vacancy.” Shumlin nominating a judge would not, by itself, fill a vacancy, he argued. The Judicial Nominating Board began the process, the governor’s nomination would continue the process, and an affirmative confirmation vote by the Senate would complete the process, he said.
Battles also cited several instances at the federal level where appointments were made beyond a president’s term. According to Battles, President William Howard Taft appointed a position that was later confirmed during the administration of President Woodrow Wilson. President John F. Kennedy, meanwhile, had several of his appointments confirmed after he was assassinated. And, President Richard Nixon’s nomination for the 2nd Circuit Court of Appeals was confirmed in 1974 several weeks after Nixon resigned, Battles said.
Attorney Daniel Richardson, arguing on behalf of Senate Judiciary Committee Chairman Dick Sears, who filed an amicus brief with the court supporting Shumlin, cited three Vermont examples when an appointment was made before a sitting judge retired. None of those cases involved a change in gubernatorial administration, however.
“It shows that this is the way in which this process worked,” Richardson told the justices.
Richardson said a nomination by Shumlin would be “simply acting in a causative chain reacting to the Judicial Nominating Board.”
“I think the court has to look at this process as a whole and (the Judicial Nominating Board) is a necessary part,” he said.
Turner, speaking to reporters after oral arguments, said he hoped the court would rule definitely on the underlying issue. Tossing the case on the grounds that he and Benning lacked standing would not settle the matter of when a vacancy on the court occurs.
“This is a very important case and that’s why I’m spending my money to take it to court. I want to make sure the future of Vermont is in good hands,” he said. “It’s not partisan. I’m the Republican leader, but I assure you, this is not a partisan question. We need to make sure for the future of Vermont that this is resolve and I’m hopeful that the court rules. There’s still a chance that they may say I didn’t have standing … and not rule on it.”
The justices peppered both sides with questions during oral arguments. Chief Justice Paul Reiber questioned at one point how an appointment could be made while Dooley remains on the bench.
“We don’t have six chairs,” Reiber quipped, prompting laughter in the chamber.
Retired Superior Court Judge Walter M. Morris is sitting in on the case in place of Justice Beth Robinson because she once served as Shumlin’s legal counsel.