Board Hopes To Appoint A New Vermont Supreme Court Justice, Without Controversy

Dec 12, 2016

For the past six months, Congress has been engaged in a bitter political fight over President Obama's nominee for the U.S. Supreme Court. There's also a vacancy on the Vermont Supreme Court, and the state's Judicial Nominating Board says it's trying to avoid a similar controversy here in Vermont.

But it's not certain that they'll be successful.

This is a story about the definition of the word "vacancy," and how that definition could affect the workings of the Vermont Supreme Court for many years.

In September, Justice John Dooley announced he wouldn't be a candidate for another six-year term on the bench, and that he plans to step down when his current term ends in March.

Rutland attorney Peg Flory, a state senator and the chairwoman of the state's Judicial Nominating Board, says Dooley's decision triggers the work of her board to seek nominees to replace him.

But Flory says it's possible to read the Vermont Constitution and conclude that a court vacancy doesn't actually occur until Justice Dooley steps down in March.

“So there's a question as to whether there in fact is a vacancy for any governor to fill until the end of March,” Flory says.

This distinction is important because if there's a vacancy now, it can be filled by outgoing Gov. Peter Shumlin.

But if it's determined that a vacancy doesn't occur until Dooley steps down, then Governor-elect Phil Scott will make the appointment.

Flory says studying how other states have handled similar situations doesn't offer her board much guidance.

“This has happened in some other states that have similar wording in their constitution or statues,” Flory says. “And some have decided one way, some have decided another way, so it's unclear."  

"It was our decision, our extreme desire, to avoid Washington politics and just do our job the way we've always done our job." — Sen. Peg Flory, Judicial Nominating Board chairwoman

Flory says her board decided to proceed with the appointment process to avoid a messy political fight. She expects to have names to the governor in time for him to make a nomination before he leaves office in early January.

“It was our decision, our extreme desire, to avoid Washington politics and just do our job the way we've always done our job,” she says.

Flory says she's heard that some groups might challenge Gov. Shumlin's authority to make this appointment.

If that happens, she's concerned that the litigation could go on for years.

“He could decide not to name rather than potentially cause a constitutional problem that frankly could arguably go on for the next six years,” Flory says.

Shumlin has every intention to make this appointment. His office declined an interview request for this story, saying it was inappropriate for him to discuss this case while the process is underway.

They said a statement that Shumlin made in September is still applicable today:

“Governors don't stop doing their jobs because they are finishing their terms. Vermonters hired me to work as hard as I can to fulfill the obligations of the governor's office, and I think past governors would agree that our job is to do our jobs until the next governor is sworn in and that's what I intend to do." 

Governor-elect Phil Scott says he has no intention of getting involved in this issue.

Meanwhile, Governor-elect Phil Scott says he has no intention of getting involved in this issue.

Back in September, as a gubernatorial candidate, Scott said he would have preferred if Shumlin waited and allowed the next governor to make the court appointment. But he also said he wouldn't take any steps to try to block Shumlin from taking action.

Last week, he reiterated that position.

“There won't be anything filed by this administration, my administration, in that regard. What other people do, I have not heard that yet, but we'll deal with that as it comes,” Scott said. “That isn't my highest priority at this point in time."

Flory says the Judicial Nominating Board has scheduled a series of interviews with prospective candidates. After each interview, the board votes if the candidate is "well qualified" to serve on the court.

When the interviews are over, the board will send its list of candidates to the governor and he'll have the opportunity to choose a new Supreme Court justice from this list.