Montpelier
Minutes after Shumlin delivered his farewell address, the five-person court released a decision determining that the governor does not have the authority to name a new member.
Shumlin, a Democrat, intended to appoint a successor to Justice John Dooley, who announced in September that he would step down when his term expires in April.
The court on Tuesday heard a challenge to the appointment brought by Rep. Don Turner, R-Milton, and Sen. Joe Benning, R-Caledonia.
In their decision, the justices explored the definition of what constitutes a vacancy.
“We see no reason why a vacancy would exist at the end of a term when a justice is not retained, but before the end of the term when a justice does not seek retention,” the decision said.
The justices concluded there is “no support” for the governor’s argument that the constitution allows him to appoint someone to fill a position that does not become unoccupied until after he leaves office.
Shumlin “cannot complete the appointment process by swearing in a new justice now — effectively adding a sixth justice — because the vacancy does not arise until Justice Dooley leaves office,” the decision said.
Shumlin’s legal team, represented on Tuesday in court by Assistant Attorney General Benjamin Battles, argued that the legislators did not have grounds to bring the challenge.
The court, however, ruled that Benning, as a member of the Senate, has a constitutional right to give “advice and consent” on governors’ Supreme Court nominees, which means Benning has an interest in ensuring he is voting on a legitimately named appointee.
“In other words, Senator Benning has a particular right and interest in not having his constitutional duty subverted by voting on an appointee who is not constitutionally entitled to hold office in the first instance,” the decision said.
The decision was released on Wednesday afternoon, Shumlin’s last full day in office, as he concluded his farewell speech and unveiled his official portrait.
After the ceremonial office emptied out, Shumlin told reporters that the decision came as a surprise.
“Both the attorney general and I don’t read the law the way they’ve interpreted it, but obviously I’m going to live by the court decision, and I wish the governor-elect luck in appointing the next justice,” Shumlin said.
The outgoing governor said he had interviewed the six candidates on the list the Judicial Nominating Board sent him last month and conceded he had an inclination toward one of them, “but that is now irrelevant.”
The new governor, Republican Phil Scott, will have the opportunity to select a nominee from the same list.
“The good news is that the nominating committee sent a great list of six candidates to the governor-elect, and I know that he’ll pick a good candidate,” Shumlin said.
“This isn’t like Washington,” he said. “We don’t sit there and keep track of exactly what our justices do and who’s a Democrat and who’s a Republican. When I interview a justice, I have no idea what party they are. So really you have to make the decision based on who’s most qualified.”
Shortly after the decision was released, Benning said he was pleased with the outcome.
“I think it was a gray area of the law that needed to be resolved,” he said.
“And I’ll make one prediction: This will end up as a question on the bar exam someday,” he said.
Turner and Benning perused the decision together outside the House chamber. Turner said there had been frustration within the House Republican caucus that Shumlin planned to appoint Dooley’s successor.
Turner said he was under the impression the Judicial Nominating Board would not be able to complete the interview process before Shumlin left office. When it forwarded names to Shumlin in December, Turner decided to take action.
“The bottom line is I think Vermonters win, and that’s what this was all about from day one,” Turner said.
Both lawmakers dismissed the idea that their challenge to Shumlin was politically motivated.
“In my eyes, this was strictly a legal argument,” Benning said.
Sen. Peg Flory, R-Rutland, who leads the nominating board in her capacity as an attorney, said on Wednesday that the court came to the right decision.
“I’m glad that it has settled the question so that we’re not facing what could have been a judicial crisis clogging up the courts down the road,” Flory said.
She said there is a tradition among governors from both parties of appointing justices who best fill out the court.
“Gov. Scott could pick the same person (as Shumlin), because he could feel that that applicant has the area of expertise” that’s needed for the court, Flory said.
Flory, whose term on the nominating board will expire within weeks, said the board does not select candidates based on politics. “We don’t do it based on philosophy or who’s liberal or who’s this,” Flory said. “We’ve always seen to do it on trying to get a well-balanced court on experience and issues.”
She’s working on a draft bill that she says will take on some of the kinks in the system. She plans to add some language about the situation that arose here to prevent confusion in the future.
Scott’s communications director said the governor-elect had hoped Shumlin would leave the appointment to the next governor but that he had pledged not to try to block him from naming someone.
Supreme Court Justice Beth Robinson, who served as Shumlin’s general counsel before she was appointed to the court, recused herself from the case. Retired Judge Walter Morris sat in for her.
Justice Dooley did hear the case.
Court Administrator Patricia Gabel said on Wednesday that at the Supreme Court level, it is up to each justice to determine whether to sit out a case.
“Whether or not the justice wishes to comment on whether they recuse or choose not to recuse in that particular case is also up to the particular justice,” Gabel said.
Gabel said she contacted Dooley on Wednesday evening and that he indicated he considered whether he had a conflict of interest but ultimately determined he did not.
According to Gabel, Dooley was prepared to consider a motion from either side in the case for his disqualification. Neither Benning, Turner nor Shumlin filed for him to be disqualified.
Dooley was not available for comment on Wednesday.