Dooley announced in September that he would retire when his term ends on March 31. Shumlin raised some Republican hackles by promptly declaring that he would pick Dooley’s successor. Now, the outgoing governor will spend his final days in office defending his decision in court — a hearing is scheduled for January 3.
“By looking to make a consequential executive decision that should rightly be made in April 2017, at a time well past his gubernatorial tenure, Gov. Shumlin is setting a troubling precedent of overreach,” Turner said in a statement announcing his legal challenge.
Reached Friday, Turner said he’s “very pleased” with the court order and is confident he’ll prevail. “When I look up vacancy in the dictionary, it means no one is in the position,” Turner said.
Shumlin spokesperson Scott Coriell told Seven Days that “the governor has been following the law” per this state statute: “Whenever a vacancy occurs in the office of a Supreme Court Justice, a Superior Court judge, magistrate, or Chair of the Public Service Board, or when an incumbent does not declare that he or she will be a candidate to succeed himself or herself, the [Judicial Nominating] Board shall submit to the Governor the names of as many persons as it deems well qualified to be appointed to the office.”
Scott told Vermont Public Radio earlier this month that he had no plans to interfere in the process. In a statement Friday, Scott said he has “a lot faith in the Court to provide clarity on this issue and make the appropriate ruling.”
Coriell said Shumlin has interviewed the six candidates submitted to him by the Judicial Nominating Board but has not yet named a replacement for Dooley. Coriell deferred to Attorney General Bill Sorrell, who could not be reached, for further comment.
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I’d be interested in knowing who is advising the Governor on this question. The statute cited by Scott Coriell (4 V.S.A. Sec. 602(b)) is specifically targeted at the responsibilities of the Judicial Nominating Board. It requires the JNB to solicit and forward names to the Governor when a certain event takes place. It vests no authority in the Governor to act whatsoever, no matter when he gets those names. In fact, the statute itself is located in that area of law dealing solely with the judicial branch of government.
The Governor’s sole authority to appoint a justice comes directly from the state’s constitution. Chapter II, Section 32 specifically states that an appointment is made when the office becomes “vacant.” It would be quite a stretch to claim the office is “vacant” while the present occupant is still hearing cases, interrogating litigant’s attorneys, writing legal opinions, overseeing his staff and receiving his paycheck.
Governor Shumlin needs to get a second legal opinion. Quick!
Senator Benning:
Youre a lawyer; Im not. But your argument seems unpersuasive.
4 VSA 602(b) says: Whenever a vacancy occurs in the office of a supreme court justice or a superior judge, OR when an incumbent does not declare that he or she will be a candidate to succeed himself or herself, the judicial nominating board shall submit . (emphasis added)
First note that the law says shall not may. The Board is given an order, not an option. Now, why would the law require the Judicial Nominating Board to make a submission to the governor that the governor is enjoined from acting on? Your argument requires just that: the Board is tasked with making a list of nominees, which is, according to you, totally useless.
The far more logical and natural reading, in the absence of any definition of vacancy elsewhere in the statutes, is that the law foresees appointments in EITHER situation.
Otherwise, the clause beginning with or is either useless or meaningless.
The headline on this story suggests that the Court has issued a ruling against the governor. Assuming I understand all the stories Ive read, thats not what happened.
The court has put a stay on the governors action UNTIL it hears the case. Simply put, the Court agreed to hear the case brought by Rep. Turner.
Theres a big difference between HEARING a case an DECIDING it.
Mr. Greenberg, just wondering how much has Peter Shumlin paid you over the years to repeat and support everything he says and does?
And, by the way, we’ll see how your legal analysis holds up this time. On Vermont Yankee, you repeated over and over and over that the federal courts could not possibly find that the Legislature had overstepped its authority in trying to shut down VY. When Vermont federal judge Murtha proved you wrong, you insisted that the U.S. Court of Appeals for the Second Circuit would reverse him. You were wrong again. Just sayin.
John Greenberg: The statute requires the Judicial Nominating Board to come up with a list of names to submit to the Governor. It directs the JNB to submit those names to the Governor when a certain event takes place. One such event has taken place and the JNB has done its job. The statute has nothing to do with the Governor, except to designate him as the recipient of the JNB’s list.
Just because the JNB has done its job doesn’t mean the Governor is automatically empowered to appoint. Unlike the statutory authority governing the JNB, the Governor’s appointment authority is provided by the state constitution. The constitution only permits appointment when the office becomes “vacant.”
Justice Dooley has announced an intention to serve until March, meaning his seat is not vacant until then. Let’s suppose Justice Eaton suddenly announced an intent to leave the Court in 2025. How far into the future should Governor Shumlin be able to bind a future governor? Allowing an outgoing governor to appoint for a job that doesn’t commence until after that governor’s term expires would strip the ability of any new governor to act within their constitutional authority. The new governor should appoint when the vacancy actually occurs.
John I recognize we have our political differences, but this really isn’t a partisan issue. It is a conflict between a statute and the constitution that the Supreme Court needs to resolve.
How courageous, “knowyourassujptions,” to boldly attack me personally while hiding behind a pseudonym.
As the governor well knows — he was my senator for many years — we have taken opposing sides on more than one issue, including, prior to 2010, VY..
I see no reason why I shouldn’t defend positions with which I agree, and no one pays me to do so.
I did confidently predict that the courts would be smarter than they were about VY. I was wrong.
Senator Benning:
You suggest that there is a conflict between a statute and the constitution. That is precisely my problem with your analysis: it puts the two texts in conflict.
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Respectfully, I submit that there is a plausible alternative reading. Youre right that the Constitution mentions only vacancy (without further definition). But there is nothing in its language that I see that precludes interpreting it the way the statute appears to. Indeed, section 34 states: At the end of the initial six year term and at the end of each six year term thereafter, such justice or judge may give notice in the manner provided by law of a desire to continue in office and then addresses what happens when a justice DOES so desire. It says nothing at all about the situation where one doesnt, and certainly nothing to PRECLUDE appointment in that situation.
In my view, this DOES sets up a situation where there is interpretative uncertainty, but not necessarily conflict. Conflict implies that the two texts are at odds with one another. My understanding is that the strictures of legal interpretation require us to presume that the legislature doesnt write laws which contradict the constitution, unless there is no viable way to maintain that view. Ive suggested one such reading. There may be others.
The obvious implication of your reading is that the incoming governor should make the appointment. But then why shouldnt the new governor get to appoint the JNB? How does it make sense to saddle the new governor with the recommendations of a JNB appointed by the old one, or worse, have him simply ignore them and start afresh?
I dont approach this as a partisan issue, nor is my reading necessarily an expression of my preferred outcome.
Senator Benning:
A few quick additional points.
First, word count limits precluded my thanking your for your response. So thank you.
Second, your example is poorly chosen: Let’s suppose Justice Eaton suddenly announced an intent to leave the Court in 2025. Its 2016. Terms are 6 years, so Justice Eatons decision about 2025 is irrelevant. To be pertinent, the announcement would have to pertain to the expiration of a Justices term, so no later than 2022.
I realize youre trying to propose reductio ad absurdum argument to make your point, but the question you raise is a perfectly real one: How far into the future should [a[ Governor be able to bind a future governor? When SHOULD a justice make a declaration that he or she intends to leave, and how soon before an actual vacancy a governor should make appointments? I find it hard to believe there is no precedent about this when this occurs within a governors term.
What makes this situation perhaps unique (Has anyone researched the question historically to see if it has arisen in the past?) is that it is occurring just at the end of the term of a governor who will not succeed himself.
Im glad the Supreme Court will make this decision and not me. Frankly, what Governor Shumlin is doing appears to me to be legally correct, but democratically wrong, so Im actually rather torn. But as I say, its not my decision to make!
You really should stop pretending to be a lawyer.
Happy Holidays.
Mr Greenberg after reading all of your extremely long post I have come to the conclusion that you are great at contradiction of yourself. You state that a governor is not allowed to act on issues after their term is up. That being said the rest of your comments are irrelevant seeing that Mr. Shumlin is leaving office in just over a week and Mr. Dooley’s post will not be vacant till March well into Governor Scott’s term. Democrats need to stop trying to change the rules of the system just because their time in charge is almost up.
Citizen claims that I said that a governor is not allowed to act on issues after their term is up. I didnt say anything resembling that, although if citizen means that governors may act as governors only while theyre serving as governors and not afterwards, it would certainly appear to be correct.
In any case, none of this is at issue here. The current governor was planning to make the appointment DURING his term, not after. Representative Turner has raised the issue of whether the appointment can be made when a justice declares that he does not wish to be reappointed, or only after he actually vacates his position and the Supreme Court of Vermont will now hear and decide the case.
In the face of Senator Bennings argument for Rep. Turners position, Ive tried to show that there is a reasonable legal argument to be made for the governors plan, and indeed, that the latter position is MORE reasonable legally because it gives full meaning and force to both the statute AND to the constitution, while Bennings interpretation puts them in conflict.
In any case, no one is trying to change the rules. There is a legitimate question here as to what the rules really are.
Finally, again, I would suggest that someone should take a look at the preceding two centuries of Vermont history to see if this situation has arisen previously and how it was handled. It seems improbable that no similar situation has arisen in all that time.
John Greenberg: Thanks for the discussion. I’m sorry to see you are taking some heat from the political end, but I guess it should be expected.
The question you raise about which JNB should create a list is a valid one. The same can be said about the senate, which has the responsibility of providing its “advice and consent.” Should it be the senate constituted at the time the JNB makes a list, the senate constituted at the time the governor names a replacement, or the senate constituted at the time the vacancy factually occurs? If the Governor was to appoint a replacement on Tuesday of next week, should it be the senate on Tuesday or the new one sworn in on Wednesday that gives the advice and consent? I would argue that there is no problem if the JNB, governor and senate each remained in their respective silos and abided by the plain language of their authorizing documents. The JNB has done its job. No action should be taken by the governor until the office is factually vacant. The senate can then do its job and the process will have worked as intended.
I still cling to the belief that the governor’s job is limited to the language of the constitution and nothing about the statute, explicit or implied, vests him with power. I did not mean to imply that the documents themselves are in conflict with each other. Conflict is only created through the governor’s interpretation. It will be interesting to see how the Supreme Court decides it. Thanks again for the discussion.
Heat doesnt really concern me, especially from pseudonymous sources, but I do appreciate real thoughtful dialogue, so thanks again for the reply, Senator.
Only two possibilities make sense to me. Either the incumbent governor can make an appointment, he does so before the terms of the existing senators expire, and the senate is able to consent before all the relevant terms expire. Or the governor does not make the appointment before his term expires, or the senators terms have expired by the time it is able to consent, then the new governor and the new senate appoint a new JNB, which then makes a new set of recommendations, and then the new governor appoints and the new senate confirms. Unlike you, in that circumstance, I assume the old recommendations would expire with the old JNB.
Why should a new governor and/or a new senate be bound by recommendations from a JNB whose terms have expired?
You seem to believe that the JNBs job is to make the recommendations because the statute so commands. But that doesnt make much sense to me unless this is some kind of make work program for appointees.
The statute orders them to do so in order that the governor can make a (legally acceptable) appointment and for no other reason.
In effect, I see this as ONE job, of which there are 3 coordinated parts: the JNB recommends so that the governor can appoint so that the Senate can confirm. Take out any one of the three parts and the job is not complete.
It will, indeed, be interesting to see what the Supreme Court has to say. Theres a lot more here than first meets the eye.