Vermont Supreme Court Rules Shumlin Can't Appoint Justice's Replacement

Jan 4, 2017

In a unanimous ruling that could impact its own make up, the Vermont Supreme Court on Wednesday issued a ruling that denies Gov. Peter Shumlin the ability to appoint a successor to outgoing Associate Justice John Dooley.

The decision vindicates an effort led by House Minority Leader Don Turner, who filed a petition in Supreme Court earlier this month asking the five-justice panel to block Shumlin from making the appointment.

Moments after the court announced its decision Wednesday, Turner said he was gratified with the result.

“I’m pleased for Vermont, because the future now is clear,” Turner said. “I mean, this will not come up again where it’s a supreme court justice, or whether it’s a Natural Resources Board or a Green Mountain Care Board or a Public Service Board appointment. It’s not going to happen again. It’s been resolved with this settlement that it will be the incoming governor who will appoint those people.”

Dooley announced back in September that he’d step down after his term expires on April 1. Shumlin will have left office well before that date. But the three-term Democrat still wanted to appoint Dooley’s successor.

He was prepared to do so until last week, when the Supreme Court issued a temporary injunction blocking the appointment, pending a hearing on Turner’s petition. At that hearing on Tuesday, Deb Bucknam, who’s serving as co-counsel for Turner, told the justices – Dooley among them – that the case is straightforward.

Rep. Don Turner, shown here at the kickoff of the 2017 legislative session in Montpelier Wednesday, says he did not want to have to to bring the case against Shumlin, but he is happy the issue is resolved.
Credit Angela Evancie / VPR file

“The issue today is very simply in my view whether a sitting governor can nominate a justice to the supreme cCourt when the supreme court vacancy occurs after the governor has left office,” Bucknam said.

Bucknam said the answer is clear.

“The governor has no power under the constitution to appoint anyone to a vacancy that occurs after the governor’s term ends,” she said.

And the court agrees. 

The 22-page decision, issued less than 24 hours before Shumlin officially leaves office, says plain reading of Vermont’s constitution indicates that the court “vacancy” won’t occur until after Shumlin is out of office. For that reason, the court says, Shumlin doesn’t have the executive authority to appoint Dooley’s replacement.

“Any vacancy that warrants an appointment must be a vacancy in the office, not in the term,” the justices write. “No vacancy occurs while the office is being held by one occupying it under a tenure prescribed by the Constitution, unless the constitution so provides.”

Lawyers for Shumlin argued that Dooley’s announcement that he would resign rightly set in motion the constitutional process used to replace him. Since Shumlin happens to be in office when the Judicial Nominating Board sent the executive branch the possible candidates for Dooley’s replacement, the lawyers argued, he’s within his authority to appoint a successor.

But the justices pointed to a 1985 precedent out of Ohio. In that case, called Norman V. Viebranz, the court said prospective appointments are appropriate, “with this exception: If the term of the appointing body or officer will expire prior to or at the same time that the vacancy will occur, then no power of prospective appointment exists.” 

The justices say the same framework holds true in Vermont’s Constitution.

“We conclude that the Vermont Constitution does not authorize [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 [Shumlin] leaves office.”

The decision means Governor-elect Phil Scott will get to appoint Dooley’s successor; Scott will likely have to choose from among the same six names forwarded to Shumlin by the state’s Judicial Nominating Board.