Supreme Court denies Shumlin’s appointment authority

MONTPELIER — The Vermont Supreme Court ruled unanimously against outgoing Gov. Peter Shumlin Wednesday, barring him from appointing a new justice to join its ranks and delivering a stinging blow on his penultimate day in office.

Vermont Supreme Court Justice John Dooley speaks during oral arguments Tuesday for a case that will determine whether outgoing Gov. Peter Shumlin can replace him when his term expires April 1. (Times Argus/Stefan Hard)

Vermont Supreme Court Justice John Dooley speaks during oral arguments Tuesday for a case that will determine whether outgoing Gov. Peter Shumlin can replace him when his term expires April 1. (Times Argus/Stefan Hard)

Shumlin, a Democrat, had hoped to appoint a replacement for Justice John Dooley, who revealed in September that he was not seeking retention on the court. Shumlin triggered the replacement process by calling upon the Judicial Nominating Board to send him the names of well qualified candidates to succeed Dooley, who will leave the bench when his term expires on April 1.

But Rep. Donald Turner, the House minority leader, and Sen. Joe Benning, the Senate minority leader, petitioned the Supreme Court on Dec. 21 asking it to prevent Shumlin from making the appointment. Attorneys for the two lawmakers argued in court Tuesday that Shumlin’s authority to appoint a successor ends when his term does at 2 p.m. on Thursday — before the vacancy will actually exist. The Vermont Constitution, they argued, provides Shumlin no authority beyond his term.

The court, in the decision it released shortly after Shumlin delivered his farewell address to a joint assemble of the Legislature, agreed with Turner and Benning that the vacancy does not yet exist.

“In short, there is no support for respondent’s position that the Vermont Constitution gives him the authority to appoint a successor for an opening on this Court that does not become vacant—unoccupied—until after he leaves office. Respondent cannot complete the appointment process by swearing in a new justice now—effectively adding a sixth justice—because the vacancy does not arise until Justice Dooley leaves office,” the decision states. “Nor will respondent have the authority to appoint a successor to Justice Dooley at the time the vacancy occurs, after respondent has left office.”

Gov. Peter Shumlin

Gov. Peter Shumlin

Attorneys for Shumlin argued he was planning to simply continue the nominating process after the Judicial Nominating Board forwarded him the names of well qualified candidates. But the court ruled that while the board was required to begin the process, Shumlin did not have the authority to continue it. That will fall to Republican Gov.-elect Phil Scott, who will be sworn into office Thursday and will hold the actual constitutional authority to appoint a justice at the time the vacancy occurs on April 1.

State statute allows “a portion of the appointment process to proceed on an anticipatory basis so that when the vacancy becomes effective the appointment and transition can be made as seamlessly as possible. But none of those provisions give, or could give, the Governor authority to appoint a successor to a justice whose term expires, and thus becomes vacant, after the Governor leaves office,” the justices wrote.

Turner, who said he paid more than $2,000 to bring the case before the Supreme Court, relished the victory Wednesday. He called it a victory for Vermont and its government institutions.

“I’m pleased for Vermont, because the future now is clear. This will not come up again, whether it’s a Supreme Court justice or whether it’s the Natural Resources Board or Green Mountain Care Board or a Public Service Board appointment. It’s not going to happen again,” Turner said. “It’s been resolved with this settlement that it will be the incoming governor to appoint those people. So, to me, it’s a very gratifying result and gratifying that Vermont will be better going forward.”

Shumlin said he disagreed with the court’s reading of the Vermont Constitution and statutes, but respected the court’s decision.

“Both the attorney general and I both don’t read the law the way they’ve interpreted it, but obviously I’m going to live by the decision and I wish the governor-elect luck in appointing the next justice,” Shumlin said.

Shumlin said he had “a pretty good idea in my head where it was heading” in terms of his selection of Dooley’s successor.

“But that is now irrelevant. The good news is that the nominating committee sent a great list of candidates to the governor-elect and I know he’ll pick a great candidate,” Shumlin said. “This isn’t Washington, D.C. It’s not the end of the world. The governor-elect will get the same list that I got and he’ll have the same very difficult decision of who to choose from six great candidates.”

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