House Minority Leader Don Turner, R-Milton, filed a motion with the Vermont Supreme Court on Wednesday challenging Gov. Peter Shumlin’s intent to appoint Justice John Dooley’s successor.
Dooley, who has served on the court for nearly 30 years, announced in September that he plans to leave the bench when his current term expires at the end of March.
After the announcement, Shumlin initiated the process to appoint Dooley’s successor. This would be Shumlin’s third appointment to the five-member court.
Under the Vermont Constitution, governors are responsible for appointing a justice to the court when there is a vacancy.
However, there has been some disagreement whether Dooley’s seat is considered vacant, since he will continue to hold the position through March — three months into Gov.-elect Phil Scott’s term. Scott is a Republican, Shumlin a Democrat.
In his motion Wednesday, Turner argues Dooley’s seat is not yet empty.
“I just have a real concern about an outgoing governor appointing somebody to the Supreme Court when there’s no vacancy,” Turner said.
Turner said he consulted the Legislative Council after the governor began the process of selecting a new justice and learned there is no precedent for the situation in Vermont’s history.
He said he did not file with the court earlier on the issue because he understood that the Judicial Nominating Board would not have time to complete the nominating process before Shumlin left office.
“I feel very strongly that this is unprecedented territory that needs to be brought to court, and I’m doing it,” Turner said.
In the filing, Turner points to the requirement that the Senate approve the governor’s Supreme Court nominee.
If Shumlin appoints Dooley’s successor, Turner wrote in court papers, “there will be only an extremely narrow window of time (likely less than 24 hours) during which the Senate could vote to confirm or reject the appointee while Governor Shumlin is still in office.”
He argues that Shumlin’s “unconstitutional” appointment of a justice “may well result in unnecessary litigation for the unforeseeable future.” A future litigant in a Supreme Court case could potentially challenge the legitimacy of a Shumlin appointee, an action that would tie up the court for some time, Turner argues.
Shumlin spokesperson Scott Coriell said the administration is aware of Turner’s challenge. He reiterated Shumlin’s view that he is authorized to appoint Dooley’s successor.
“We thought that Rep. Turner was better than his national Republican counterparts who have for over a year obstructed President Obama’s Supreme Court nominee. I guess we were wrong,” Coriell said. “This divisive partisan move has no place in Vermont.”
Neither Scott nor Peg Flory, the Rutland attorney who chairs the Judicial Nominating Board, plans to challenge Shumlin on the move. Flory, also a Republican senator, said last week that she would have preferred to wait until the new governor took office, but decided to move forward with the process as is spelled out under the law.
According to Coriell, Shumlin has interviewed the six candidates put forward by the Judicial Nominating Board and plans to appoint one of them before the end of his term.
Court Administrator Patricia Gabel said the motion will be considered by members of the Supreme Court, who will determine whether the petition should first be directed to a lower court.
If the Supreme Court decides to hear the case, the justices will wait for a response from Shumlin’s administration and will possibly hold a hearing.
“The court will resolve the matter as quickly as possible,” Gabel said in an email.
