Updated Wednesday, Sept. 6, at 11:49 a.m.
Officially, Superior Court Judge A. Gregory Rainville’s term ended on March 31, soon after he withdrew his request for another six years on the bench. Unnamed attorneys had accused him of berating people in his court — particularly women — and state lawmakers said he’d been “dismissive” and “over the top” in retention hearings.
But Rainville remains on the bench in Chittenden County. According to that court’s calendar, he is scheduled to preside over 500 criminal cases this month and next.
So why is Rainville still serving? Vermont statute dictates that retiring judges can continue to hear cases until a successor is named — and sometimes long after. The judicial nominating process is often drawn-out. And this time, an unusual number of judicial vacancies — and an extended back-and-forth between the governor’s office and the state’s Judicial Nominating Board — have further prolonged it.
“I’m concerned that he’s still serving as a judge,” said Sen. Ruth Hardy, D-Addison, a member of the Joint Committee on Judicial Retention who had criticized Rainville’s conduct during legislative hearings in February. “And it’s unfortunate the process has taken this long to replace him.”
Vacancies on Vermont courts are typically filled after a governor calls on the 11-member nominating board to provide a list of candidates, and the governor appoints one from that list. The board — which includes lawmakers, gubernatorial appointees and attorneys chosen by the bar association — vets and interviews candidates and tries to make a nomination within two months, according to its chair, Eleanor Spottswood.
According to records shared with VTDigger, the process to select Rainville’s successor started about a month after he informed the retention committee that he would not seek another term. Gov. Phil Scott’s legal counsel, Jaye Johnson, emailed Spottswood on March 24 to say that the governor wanted to select a candidate from a list of names that the board had provided to Scott in December.
Chief Superior Court Judge Thomas Zonay, who was included in the exchange, wrote in response that he would “leave the final decision … to be addressed by the (Judicial Nominating Board) and the governor,” but he also cited the board’s rules indicating that it had to notify interested attorneys of the vacancy and interview them according to the usual appointment process. Spottswood wrote that she agreed, and later emails showed the governor’s office ultimately agreed.
Zonay also noted that two other judges — Martin Maley and Kate Hayes — were planning to retire. Together with the creation of a new Superior Court judge position last legislative session, the three retirements put four vacancies on the nominating board’s agenda.
Scott did not send a formal request to the nominating board informing its members of the vacancies until June 23, according to a copy of Scott’s letter which was shared with VTDigger.
Jason Maulucci, a spokesperson for Gov. Scott, did not respond to a question Tuesday afternoon about the lag. But following publication of this story, Maulucci said that, because some legislators serve on the board and are less available during the legislative session, the governor held off on making the request until June, after the Legislature had adjourned.
Maulucci added that, had the board initially agreed to allow Scott to select a candidate from a previous list of nominees, Rainville’s successor would have been named by now.
Spottswood said lags between when the chief Superior Court judge notifies the governor of a vacancy and when the governor’s letter activates the nominating board are not uncommon.
“I don’t know why that is,” she said.
In this case, according to Spottswood, the nominating board batched the interviews for all four vacancies and sent the governor a list of candidates on Friday — five months after Rainville’s term ended.
In an earlier exchange on Tuesday, Maulucci confirmed that the governor received the list and said Scott would next set up his own review of the candidates and schedule interviews.
“The Governor’s goal is always to fill vacancies as soon as possible with the highest quality candidates, but we understand that the (nominating board) has a deliberative process that takes time,” Maulucci wrote in an emailed statement.
Chittenden County State’s Attorney Sarah George called the process to fill vacancies “terribly slow.”
“This delay is impacting the efficiency of our Courthouses, especially as it relates to the backlog of cases each of our counties is facing,” George said in an emailed statement.
Hardy, the state senator and retention board member who had criticized Rainville, said there may be room for improvement in how judicial vacancies are handled. But she also noted that judges typically give more advance warning that they are going to retire or forgo seeking retention. In Rainville’s case, the decision was a sudden reversal.
In an interview on Tuesday, Rainville said he had been considering retirement for some time, but called his initial desire to stay on the bench “knee-jerk.”
He decided to seek retention because “you get into this routine and you just keep rolling with it,” Rainville said. “Especially with the idea that we have so many new judges and very few long-experienced judges.”
But once the hearings for judicial retention began early this year, Rainville said, he didn’t like how it unfolded. He said some members of the committee were relying on anonymous complaints. Staff reviews of his performance were “100%” positive, he said.
Rainville went on to say that the hearings were “treated more as an inquest as opposed to a review, which has not been the case in the past.” He said that has “had a tremendous chilling effect on the Judiciary.”
Rainville said he plans to work full-time until his position is filled. He cited backlogs of cases and a proliferation of shorter-tenured judges among the reasons for his willingness to stick around. But once he retires, he said, he still plans to fill in on a part-time basis — a tradition that the judiciary has come to depend on amid a heavy workload.
“Retired judges don’t go through retention,” Rainville said.
