[O]nlookers crammed into the chamber of Vermont’s top court Tuesday afternoon for a hearing in a case that could determine which governor appoints the next Supreme Court justice.
Gov. Peter Shumlin, who has just two days left in office, argues that it is within his constitutional responsibility to name someone to fill the seat of Justice John Dooley, who will retire at the end of March.
Rep. Don Turner, R-Milton, the House minority leader, contends that if Shumlin appoints a justice, he will be acting beyond his authority. Turner and Sen. Joe Benning, R-Caledonia, who joined the case last week, say the appointment should be made by Gov.-elect Phil Scott.
As the five justices took their seats, Chief Justice Paul Reiber welcomed the throng that filled every seat and spilled out into the lobby. The crowd included notable figures in the legal community, such as outgoing Attorney General William Sorrell, as well as a handful of lawmakers.
“This is a big day for Vermont,” Reiber said.
Turner and Benning were represented in the case by attorneys Janssen Willhoit, a Republican House member from St. Johnsbury, and Deborah Bucknam, who lost a bid for state attorney general in November.
Willhoit spoke first, arguing the case was a matter of the definition of “vacancy.”
“As everyone in the room can see, there is no vacancy on this court,” Willhoit said, alluding to the five-member panel.
Both Bucknam and Willhoit conceded that the Judicial Nominating Board, a panel of legal professionals and lawmakers, was right to proceed with the appointing process in the fall after Dooley did not file for judicial retention, signaling he would step down at the end of his current term.
But they dispute Shumlin’s right to appoint Dooley’s successor. Citing cases from other states, Bucknam argued that a ruling allowing Shumlin to appoint a justice to fill a seat that will not be vacated until three months after he leaves office could open a precedent.
“If you make the ruling that the sitting governor can make appointments for positions that are vacant when he is no longer in office, where does it end?” she asked.
Both attorneys defended the standing of Turner and Benning to bring the case, arguing that it is a matter of significant public interest. They argue their position is enhanced because of the role the Legislature plays in consenting to judicial appointments and voting on retention of judges.
Assistant Attorney General Benjamin Battles, representing Shumlin, questioned whether Turner and Benning have the authority to bring a case challenging Shumlin on the issue.
Battles argued that Shumlin is right to appoint Dooley’s replacement because of the structure of the nominating process.
When a justice indicates he or she will step down at the end of the current term, that notification triggers a three-part process that involves the Judicial Nominating Board, the governor and the Senate, he argued.
The panel returned to the question of what constitutes a vacancy. Justice Marilyn Skoglund observed that nobody could fill Dooley’s seat until he has left it.
“We don’t have six chairs,” Reiber added, to laughter.
Sen. Dick Sears, D-Bennington, joined the fray earlier this week when he filed an amicus brief in support of Shumlin. In his filing, Sears pointed to several previous cases when Vermont governors appointed judges to the bench before their predecessor had retired.
Dan Richardson, Sears’ attorney, argued at the hearing that the question of vacancy was a red herring. The system was designed with the intention of ensuring “continuity and consistency” within the judicial branch, he said.
An official with the judiciary said Tuesday afternoon that she expects a decision will come down Wednesday. Shumlin is slated to deliver his farewell address Wednesday afternoon, and Scott will be sworn in Thursday.
Sen. Peg Flory, R-Rutland, who chairs the Judicial Nominating Board in her capacity as an attorney, sat in on the hearing.
Afterward, she said she initiated the process of recruiting and vetting candidates for the high court after she received a letter from Shumlin directing her to do so. She said she was in routine communication with the administration and aired concerns about the validity of a Shumlin appointee but was directed to continue the process.
Flory said she hopes for a definitive ruling from the court on the issue.
“To me, the vacancy occurs April 1. The person that is governor April 1 should be appointing,” Flory said. “I’ve been clear about that all along. That’s my personal view.”
In an emailed statement, Gov.-elect Phil Scott’s communications director Rebecca Kelley said during the campaign “that he hoped Gov. Shumlin would leave the appointment to the next governor but that he would not try to block him from moving forward.”
“In the interest of a smooth transition, he’s kept that commitment,” Kelley said. “The governor-elect is glad the court is reviewing the matter in order to provide clarity on a gray area, and has faith that the court will make the appropriate ruling.”
Retired Judge Walter Morris is sitting in on the case in place of Justice Beth Robinson, who recused herself.
(This story was updated Jan. 4 to note the recusal by Justice Robinson.)
