Vermont Business Magazine In a unanimous decision, including Associate Justice John A Dooley, the Vermont Supreme Court ruled today that Governor Shumlin did not have the authority to appoint a replacement for Dooley. Dooley had announced his retirement last fall, but will not step down until this spring. The governor argued that the constitution nonetheless allowed him to appoint the next justice when a seat became imminent. The justices ruled otherwise.
In conclusion, Paul L Reiber, Chief Justice; Dooley; Marilyn S Skoglund, Associate Justice; Harold E Eaton, Jr, Associate Justice; and Walter M Morris, Jr, Superior Judge (Ret), Specially Assigned, wrote in their opinion:
“We conclude that the Vermont Constitution does not authorize respondent (Governor Shumlin) to appoint an Associate Justice of this Court in anticipation of a vacancy that is not expected to occur until the expiration of the justice’s term of office, which will occur months after respondent leaves office. In so holding, we emphasize that our decision today rests entirely upon the meaning and purpose of the Vermont Constitution. We reach our decision having in mind the overarching principles of our democracy: the integrity of our governing institutions and the people’s confidence in them. The particular identity of the parties or potential nominees to the Office of Associate Justice have no bearing on our decision. Our sole responsibility in this, as in any, case is to apply the law evenhandedly, regardless of the identity of the litigants, the sensitivity of the issues, or the passing political interests of the moment. As we have elsewhere observed, ‘[o]ur constitutional responsibility to consider the legal merits of issues properly before us provides no exception for the controversial case’. Baker v. State, 170 Vt. 194, 197, 744 A.2d 864, 867 (1999).” Baker v. State was the same-sex marriage case, which ultimately led to Vermont’s civil union and marriage equality laws.
The justices concluded: "Respondent is not constitutionally authorized to appoint a successor to the office held by Associate Justice John Dooley. Mandate to issue forthwith."
In response, Governor Shumlin said in a statement: “I want to thank the Attorney General’s Office as well as Senator Richard Sears for weighing in as the Chairman of the Judiciary Committee. I do not agree with today’s ruling, and it is inconsistent with my Administration’s reading of the law. I wish the next governor well in selecting the new Justice.”
House Republican Leader Don Turner (R-Milton), who brought the issue to the Vermont Supreme Court, said in a statement:
“I would like to express sincere gratitude to the Vermont Supreme Court for hearing our case in short notice, and for ruling in validation of our petition that rightly challenged Governor Shumlin’s constitutional authority to appoint Justice John Dooley’s successor. I would also like to thank Senate Minority Leader Joe Benning (Caledonia) for joining as co-petitioner, and Representative Janssen Willhoit (St Johnsbury) and Deb Bucknam for ably representing us in court.”
“I took this legal recourse to defend transparency and accountability in the workings of our state government. Vermonters deserve to know if an outgoing governor possesses the legal authority to make judicial and administrative appointments in the event that the vacancy is set to occur past his time in office. The Court’s unanimous decision today puts this important matter to rest once and for all.
“I am pleased that the Court prevented Governor Shumlin from setting a troubling precedent of executive overreach, and from taking an unconstitutional step that would have opened the door to foreseeable litigation. Today’s decision upholds the integrity of our governing institutions and the confidence that Vermonters place in them."
Source: Vermont Supreme Court. Governor Shumlin. Representative Turner. 1.4.2017. CLICK HERE FOR FULL RULING