Vermont Supreme Court Weighs Scope Of Peter Shumlin's Executive Power

Jan 3, 2017

An overflow crowd descended on the Vermont Supreme Court Tuesday afternoon for a hearing that could have ramifications on gubernatorial appointments for years to come. 

A decision on whether outgoing Gov. Peter Shumlin can appoint a successor to a Supreme Court Justice John Dooley will likely arrive before Shumlin officially leaves office later this week.

Update 3:22 p.m. 1/4/2017: In a unanimous decision, the Vermont Supreme Court says Gov. Peter Shumlin may not appoint Justice John Dooley's replacement. This post will be updated with more information when available.

Back in September, Dooley announced that he’d be stepping down after his term expires April 1. Shumlin will have left office well before that date. But the three-term Democrat still wants to appoint Dooley’s successor, and a prominent Republican is asking the Vermont Supreme Court to prevent him from doing so.

The Vermont Supreme Court has already signaled serious interest in the case, issuing an order last week that blocked Shumlin from appointing a successor pending the outcome of Tuesday’s hearing.

More than 100 people crammed into the court’s wood-paneled chamber to witness that hearing. Chief Justice Paul Reiber acknowledged the high stakes.

“Before we start let me welcome all of you here,” Reiber said. “This is a big day for Vermont. This is an unusual case, and we look forward to hearing the arguments and deciding the case.”

House Minority Leader Don Turner, who filed the case, wants the authority of nominating Dooley’s successor to fall to Republican governor-elect Phil Scott, who officially replaces Shumlin on Thursday.

Deb Bucknam, who’s serving as co-counsel for Turner, told the justices – Dooley among them – that the case is straightforward.

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

Bucknam proceeded to cite numerous rulings in which courts have rejected that premise. An Ohio ruling from the early 1900s that involved the appointment of a railroad commissioner, Bucknam says, offers a particularly useful precedent. And she says courts have historically been unambiguous in circumstances like the one involving Dooley.

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

"If in fact the court finds that the sitting governor, Gov. Shumlin, can make this appointment, it's not good policy. It would create ... mischief." — Deb Bucknam, co-counsel

And for good reason, Bucknam argued.

“If in fact the court finds that the sitting governor, Gov. Shumlin, can make this appointment, it’s not good policy. It would create, as I’ve indicated in the memo, mischief,” Bucknam said.

Allow Shumlin to appoint Dooley’s successor, Bucknam said, and get ready for a chain-reaction of politically-motivated, preemptive appointments by sitting governors in the future.

But Ben Battles, an assistant at the Vermont Attorney General’s office who represented Shumlin in the case, said the outgoing governor is acting well within the legal framework set out in the Vermont Constitution.

Bucknam and her co-counsel, Janssen Willhoit, spent much of the hearing arguing that since the vacancy doesn’t yet exist, Shumlin isn’t authorized to appoint a replacement.

Battles, however, said the question isn’t about what constitutes a “vacancy.”

“I think the more straightforward way to look at it is to ask, ‘What is the process for filling a judicial vacancy?’” Battles said.

Battles said Vermont’s constitution lays out a process for nominating a justice’s successor. And that process, he said, begins well before the justice actually leaves office.

“Whenever an office is vacant or an incumbent declares that he will not succeed himself or herself, the Judicial Nominating Board shall begin the process, shall forward a list of names to the governor,” Battles said.

The Judicial Nominating Board has already forwarded a list of six names to the governor. Shumlin happens to be the governor in place at that time those names arrived. And just because he’ll be leaving before Dooley’s successor is sworn in, Battles said, doesn’t mean that Shumlin must forego his role in the nominating process.

"Whenever an office is vacant or an incumbent declares that he will not succeed himself or herself, the Judicial Nominating Board shall begin the process, shall forward a list of names to the governor." — Ben Battles, Gov. Shumlin's counsel

Daniel Richardson, co-counsel for Shumlin in the case, told the justices there are good reasons for this process: “continuity and consistency and the avoidance of any possible vacancy in office.”

By naming a successor prior to Dooley’s departure, Richardson argued, the state avoids a period during which the bench is not at full strength.

Turner says he’s paying lawyer fees in the case out of his own pocket. He says he’s fielded calls from people interested in helping him cover those fees, but that he likely won’t publicly reveal the names of individuals who contribute to the legal costs associated with the case.

Turner, a Republican, says he isn’t acting out of concern for any particular cases that may come before the Supreme Court. Rather he says he’s more worried about what this precedent could mean for gubernatorially-appointed posts on the Green Mountain Care Board, Public Service Board and Natural Resources Board.

“Those are all long-term appointments, so if an outgoing governor wanted to stack those up if they knew people were getting off, or if their terms were expiring, that could be done if we don’t prevail,” Turner says.

Justice Marilyn Skoglund, center, during Tuesday's proceedings. The Vermont Supreme Court is expected to decide on the case before Gov. Shumlin leaves office later this week.
Credit Stefan Hard / Times Argus/Pool

Battles said history features plenty of cases in which executive officeholders appointed nominees who weren’t sworn in until after they left office. William Howard Taft, for instance, appointed a U.S. Supreme Court justice that wasn’t sworn in until after Woodrow Wilson, a president of an opposing party, had replaced Taft.

Several appointees of John F. Kennedy, Battles noted, weren’t sworn in until after his assassination. And even many Nixon appointees didn’t officially begin work in their positions until after the president had resigned,” Battles said.

“Our position is not that the word ‘vacancy’ is ambiguous, it’s that the case doesn’t turn on the meaning of the word ‘vacancy,’” Battles said.

The fight over who gets to nominate Dooley’s successor might have more significance in principle than in practice. Scott, who says he’s played no role in trying to block Shumlin from issuing an appointment, would likely have to choose from among the same list of six names the Judicial Nominating Board has already forwarded to Shumlin.

Bridget Asay, a former solicitor general for the state of Vermont who has argued dozens of cases before the Supreme Court here, says it’s a mistake “to try to pigeon hole the justices based on the party of the governor that appointed them.”

“And I expect the same thing will be true no matter who appoints the next justice,” says Asay, who now has a private practice in Montpelier. “It would be difficult to say that there would be much difference [between a Shumlin appointee or Scott appointee]. And what those differences might be is really impossible to predict at this point.”

Jared Carter, an assistant professor at Vermont Law School, agrees.

“Practically speaking, I don’t know that a Phil Scott appointee is going to be a whole lot different from a Peter Shumlin appointee,” Carter says.

"Practically speaking, I don't know that a Phil Scott appointee is going to be a whole lot different from a Peter Shumlin appointee." — Jared Carter, assistant professor at Vermont Law School

Still, Carter says people are right to care so much about this case.

“The role of the governor in picking Supreme Court justices, who are Supreme Court justices until they are up to 90 years old, if they’d like to, is a really important role of the governor,” Carter says. “It’s a huge power.”

And if Shumlin does get to pick Dooley’s successor, it’ll mean he’s responsible for picking three justices – a majority of the five-justice panel.

That court could face some major decisions in coming years. Asay says precedent-altering rulings from the U.S. Supreme Court – a prospect President-elect Donald Trump has hinted at as a potential benefit of his election – could throw some serious issues to state courts.

“If Roe versus Wade was overturned, that would return issues to the states,” Asay says. “And that’s the kind of question that could be out there for a state supreme court.”