Vermont Supreme Court's Ruling Likely Sets A Precedent For Future Appointments

Jan 5, 2017

Shortly after Gov. Peter Shumlin delivered his farewell address to the state Legislature Wednesday, the Vermont Supreme Court unanimously ruled that he could not appoint a successor to Associate Supreme Court Justice John Dooley.

After Dooley announced he would be stepping down at the end of March, Shumlin said he planned to appoint a new justice, even though he wouldn’t be in office when the new justice joined the court.

House Minority Leader Don Turner filed a petition with the Vermont Supreme Court at the end of December asking the court to block Shumlin from appointing the new judge. On Wednesday, the court ruled against Shumlin and the task of appointing a new justice now is in the hands of incoming Gov. Phil Scott.

VPR spoke with Bridget Asay, former solicitor general for Vermont, about the court’s decision and the precedent this ruling sets.

VPR: What do you make of the court's decision?

Asay: “The court really had two questions that it had to decide. The first is whether it had an appropriate case before it: a live concrete dispute that it could decide. Then, it had to go on to consider the merits.

“So first, what the court asked was, 'Do either Representative Turner or Senator Benning have … standing to bring this suit?' What that really means is, do they have enough of a specific interest here that they can press this issue and bring a case before the court to decide?

"The Constitution says that the governor shall fill a vacancy in the office and there isn't a vacancy until the current occupant of the office finishes up his term." - Bridget Asay

“And the court decided that yes, that Senator Benning, in his role as a senator, because he would vote on the appointment, did have a specific interest and had brought a proper case before the court.

“Then, the court was really swayed by the plain language of the [Vermont] Constitution and that's what the opinion primarily focuses on. The Constitution says that the governor shall fill a vacancy in the office and there isn't a vacancy until the current occupant of the office finishes up his term.”

Since the case was sparked by Justice Dooley’s decision to step down, was there any conflict of interest in him ruling on this case?  

“No, I don't think the justice really had a conflict. It might have seemed a little odd to some people, but really a justice only has to recuse when they have a personal interest or monetary interest.

"When you read the court's opinion you see that the court wanted this issue to be resolved to avoid having political concerns raised around appointments...our process, which was adopted in the 1970s, was intended to try to free this process from politics as much as possible." - Bridget Asay

“In the ordinary course, a justice plays no role in deciding who is going to be appointed to replace them. That's a question for the other branches. So I don't think there was any reason that I'd be aware of that Justice Dooley would have had to recuse [himself].”

Is there any kind of standard for how long a justice stays on after renouncing an intention to retire?

“No, there’s no standard for that. I think it has happened before that justices have simply decided that they will serve out the term that they are serving and not go through the retention process.

“It just happened that the way the current legislation works, that decision about not being a candidate for retention … is made seven months in advance of the end of the term.

“The deadline for making that decision is Sep. 1 of the given year, and the terms end on March 31. So there's this big gap in time and that's, here, where there was going to be a change of administration. That's really what led to the real legitimate questions about how the appointment process [would] continue."

As a former solicitor general, you’ve argued before the Vermont Supreme Court. Had you ever seen anything similar to this case?

“No, I hadn't. And I think generally the parties in the court had agreed that this was a novel question. And again, it was driven by the timing that the statutes created, that the decision about not sitting for retention came so far in advance of the end of the term.”

Does this set a precedent for the state?

“Yes, and I think when you read the court's opinion you see that the court wanted this issue to be resolved, to avoid having political concerns raised around appointments. That's actually mentioned in the opinion, that the understanding that our process, which was adopted in the 1970s, was intended to try to free this process from politics as much as possible.

“And the court says, in the opinion, that this really has nothing to do with who the individual parties are or who the nominee might be; it really has to do with our state institutions and people's confidence in them and they’ve resolved this question now.”