A Northeast Kingdom attorney is challenging Gov. Phil Scott’s appointment of Farzana Leyva as Orleans County state’s attorney, arguing that a full-term vacancy can only be filled by special election.
But in an order issued Wednesday, shortly before Leyva was sworn in, Superior Court Judge Daniel Richardson denied the request to block Leyva from taking office. Instead, Richardson gave the attorney, David Sleigh, a week to fill gaps in the filing, at which time the judge said he would address the merits of the case.
The fate of the county prosecutor’s job has been in question since last August, when Scott appointed then-State’s Attorney Jennifer Barrett to the Vermont Superior Court. Barrett, who had been seeking reelection at the time, did not remove her name from the ballot and won another four-year term — but could not hold both jobs simultaneously.
Leyva had been serving as interim state’s attorney until Jan. 27, when Scott appointed her to fill the post for the few remaining days of Barrett’s last term. The governor indicated at the time that he would also reappoint Leyva to the position for the four-year term to which Barrett had recently been reelected.
But Sleigh, a St. Johnsbury defense attorney, took issue with Scott’s move — and filed a complaint seeking to prevent Leyva’s appointment.
“State’s attorneys by Constitution are elected by the constituents of their respective counties. Farzana Leyva has not been,” he told VTDigger. “The real question in this case is whether the governor can appoint a full-term state’s attorney who’s not elected by the people of Orleans County.”
In a written statement Wednesday, Scott spokesperson Jason Maulucci said, “The Governor’s constitutional authority in this matter is clear.”
Attorney General Charity Clark, who is representing Scott and Leyva in the case, filed a motion to dismiss on Tuesday.
“The Governor has constitutional and statutory authority to make an appointment to fill that vacancy,” Clark wrote in the filing. “There is no textual, structural, or historical support for Plaintiffs’ argument that the vacancy can only be filled by a special election.”
In his order Wednesday, Richardson said Sleigh had failed to show that Leyva’s swearing-in would cause immediate or irreparable harm. He also questioned whether Sleigh had standing to make the complaint because the lawyer brought it on behalf of all his firm’s clients, but failed to identify them.
Richardson gave Sleigh more time to address the shortcomings in his filing and did not immediately rule on the merits, but he indicated he was skeptical of Sleigh’s underlying argument.
“While the briefing in this case is only at its initial stages, the Court has significant concerns that Plaintiff is seeking to have the Court review what is in effect a political determination, the appointment of a county officer, to which the Governor can point, in part, to an express Constitutional authority that delegates the responsibility solely to him,” Richardson wrote.
Leyva declined to comment until litigation has concluded.