By Elizabeth Kruska
No, you may not appoint a Vermont Supreme Court Justice where there is no vacancy.
In a 21-page per curiam decision (including a 2-page footnote!) grounded in the Vermont Constitution, the Vermont Supreme Court unanimously decided that under our state constitution, the now-former governor could not make an appointment to replace soon-to-be-former Associate Justice Dooley when the latter leaves his position on March 31 of this year.
Let’s back up. Way back in 1968 the legislature created a Constitutional Commission to address how judicial appointments were made. Up to that point, the legislature was charged with the duty of electing justices for vacant judicial seats. The Commission recommended changes that were ultimately adopted in 1974. From that point forward, the process was that upon a vacancy, a nominating board would recommend candidates to the Governor. The Governor would then appoint someone from that pool of candidates. In the case of a Supreme Court justice, the Senate approves the nomination and the person becomes a Supreme Court justice. This was the process for certain other appointments that required advice and consent of the Senate, and with the 1974 amendment made it the process for the Supreme Court, as well. This two-step process took politics out of the appointment procedure, since it requires not only a nomination but also a confirmation. Read the long footnote. It’s very good.
So, when 1987 rolled around and Justice Dooley was initially appointed, this was the procedure in place. In 2016, when Justice Dooley decided he did not want to be retained again, this was still the procedure. When Justice Dooley was initially appointed, Ronald Regan was President and the Berlin Wall was still walling in and walling out and giving offense - so much so that Ronald Regan that same year implored Mikhail Gorbachev to “tear down this wall.” I point this out only to mark the passage of time; it’s reasonable that Justice Dooley might want to leave the bench after being a justice for 30ish years.
Nobody could have anticipated, though, that two people doing two perfectly normal things would have caused a kerfuffle. Justices (and Superior Court judges, I believe) are appointed to 6-year terms. No later than September 1 in the year proceeding the end of each 6-year term, an incumbent justice must submit paperwork indicating his or her intention to seek retention. Justice Dooley, after nearly 30 years said, “this has all been wonderful, but now I’m on my way” or something similar. Perfectly normal.
Governor Shumlin was elected in 2010. He was reelected in 2012 and 2014. After six years of being governor he decided it was time to do something else and decided not to run again in 2016. Again, perfectly normal.
But, the confluence of these two events created a perfect storm of constitutional issues with respect to the appointment process. Governor Shumlin made it pretty clear that he intended to appoint someone to replace Justice Dooley, since he knew in September of 2016 that the latter chose not to return. But the problem was that Justice Dooley’s seat wasn’t actually going to be vacant until April 1, 2017, which is three full months after Governor Shumlin was scheduled to leave office.
Nevertheless, the Judicial Nominating Board called for applications and sent the names of several (I think six) candidates to Governor Shumlin to send to the legislature, as per the procedure under the 1974 amendment to the Vermont Constitution. The Constitution doesn’t say when the Judicial Nominating Board is supposed to submit names to the Governor (again, look at that big footnote), so they followed the procedure they follow, which is to vet candidates and submit names.
Mid-December 2016 rolled around, and some members of the legislature were decidedly un-hip to the idea that the Governor could make a prospective appointment to a position that was not yet vacant. Representative Donald Turner filed a petition for a writ of quo warranto in the Vermont Supreme Court (2016 VT 135). The opinion isn’t clear on this, and I don’t have the statutes handy, but I’m guessing SCOV has original jurisdiction because of the constitutional issue. Senator Joe Benning joined Representative Turner’s filing (2016 VT 136), which turned out to be a very smart move, for reasons I’ll explain below. Senator Sears sought ten minutes as an amicus, or friend of the court, to argue, which was also granted (2017 VT 1). Hey, why. not? We’re in uncharted waters here, and ten minutes of argument is probably not going to kill anyone and may only help everybody figure out what to do.
The Supreme Court, recognizing there was a very tight time frame between the time of filing (December 16, 2016) and the time Governor Shumlin was going to leave office (January 4, 2017), immediately ordered that the Governor not make an appointment until the court heard argument on whether or not this was allowed. The Supreme Court also said that even though we don’t practice by writ in Vermont anymore, they’d take up the petition for writ of quo warranto because of the shortness of time, and also because that was the only basket of relief this situation fit into. Quo warranto is Latin for “by what authority,” although it also sounds like a good name for a racehorse or garage band.
First of all, SCOV tackles the issues of standing and ripeness. Standing only exists where a plaintiff has a stake in the outcome. There has to be actual, concrete injury to the plaintiff, and the injury can’t be speculative. I can’t sue my next door neighbor for not shoveling our common sidewalk because I might slip on the snow; I have to have actually slipped on the snow and gotten hurt in order to have standing in that matter. Also, there has to be causation. The action of the defendant must have an actual and direct link between the defendant’s action and the plaintiff’s injury. Last, there has to be redressability. There has to be some way to remedy the injury.
Because Senator Benning joined Representative Turner, the plaintiffs had standing. Since under the 1974 constitutional amendment senators vote to confirm an appointee, a senator has an actual stake in making sure he or she is assured that the vote is constitutional. They don’t get to vote on unconstitutional things, and the executive branch doesn’t get to take away the legislative branch’s ability to operate pursuant to the constitution. This is basic Separation of Powers 101. It’s unreasonable to expect that Senator Benning - and the other senators - should have to vote on something that potentially violates their oath of office.
The Governor, understandably, disagreed with all this. He also argued that this wasn’t even ripe to come to court yet. SCOV disagreed with that. Ripeness doesn’t just apply to fruit; it also applies to court cases. Courts are charged with the responsibility of deciding only controversies that come before them. They don’t go deciding law stuff for squeals and giggles. Since Governor Shumlin hadn’t even actually made an appointment yet, there was nothing to argue about. That’s like me suing my neighbor for not shoveling the walk today even though there’s no snow on the walk. It’s not ripe. By the way, my neighbors on either side are lovely people and I have no immediate plans to sue either of them.
SCOV says the legislators’ suit is ripe. The Governor had been saying he was going to make the appointment to fill Justice Dooley’s seat since September when it became clear that Justice Dooley did not want to be retained again. It was also well-known that the Judicial Nominating Board had sent a slate of possible nominees to the Governor for consideration.
SCOV also felt it was appropriate to enjoin an unconstitutional appointment before it was made. By issuing an injunction to prevent the appointment, no Senator had to cast an unconstitutional vote, and no Governor would be in the position to ask them to do that.
All that having been said, SCOV decided this was a justiciable matter, and turned to whether or not there was authority to fill the vacancy.
Long story short - the answer is no.
The reason is because the seat simply isn’t vacant. Justice Dooley still works there until March 31 and he still sits in that same chair and he’s still going to hear cases and ask questions. I believe it was Chief Justice Reiber who pointed out at the oral argument that they only own five chairs (this is not a call to the legislature to increase the Judiciary’s chair budget, but I’m sure they’d be more than ok with it if more funds were allocated to this co-equal branch of government. Just sayin’.).
The Vermont Constitution calls for appointment where there is a vacancy. SCOV starts with the plain meaning of the word “vacancy” to see what that means and how it should be used here. They busted out the Black’s Law Dictionary and finds a common definition of “vacancy.” Honestly, I was surprised to see they went to Black’s; I’d have thought if we were talking about plain meaning it would have been as effective, or even more effective, to go to Merriam Webster, since they don’t do a specialized dictionary. Heck, if we’re looking at the plainest of meanings, SCOV could have quoted a sign at a Holiday Inn, since pretty much everybody understands the concept of vacant when it comes to lodgings.
The Vermont Constitution authorizes the Governor to fill vacancies, but not to create vacancies. The position must be actually open, not conceivably open. If the Governor could make that kind of appointment, he or she could, theoretically, appoint people to jobs that aren’t even open yet. Just because a justice decides not to declare for retention does not render the job “open” since there is still a person doing the job, serving out the term. It is expected Justice Dooley will stay and that his position technically is not vacant until his term is done.
SCOV also points out that there is a provision in the statute for justices who are not retained. In the event that happens, by statute, it is expected the justice will finish his or her term unless he or she is removed for some other reason. SCOV sees that this situation is no different, and sees no reason why it would be.
SCOV concedes that it is important to be at least a little bit proactive. Justice Dooley effectively gave seven months’ notice that he was not going to be a justice anymore. That’s plenty of time for the Judicial Nominating Board to send names to the Governor for consideration. And it’s important for the Governor to be ready to appoint someone new so that there aren’t any delays in court proceedings and the government can function as normally and seamlessly as possible.
SCOV is really clear that their decision is not at all based on who the possible candidates are to take Justice Dooley’s position (and honestly, I don’t know if they even know), nor based on the political affiliations of either the outgoing Governor or incoming Governor. It is their to decide cases, regardless of their difficult or controversial nature, and will do so based on the Vermont Constitution.
Governor Shumlin was elected in 2010. He was reelected in 2012 and 2014. After six years of being governor he decided it was time to do something else and decided not to run again in 2016. Again, perfectly normal.
But, the confluence of these two events created a perfect storm of constitutional issues with respect to the appointment process. Governor Shumlin made it pretty clear that he intended to appoint someone to replace Justice Dooley, since he knew in September of 2016 that the latter chose not to return. But the problem was that Justice Dooley’s seat wasn’t actually going to be vacant until April 1, 2017, which is three full months after Governor Shumlin was scheduled to leave office.
Nevertheless, the Judicial Nominating Board called for applications and sent the names of several (I think six) candidates to Governor Shumlin to send to the legislature, as per the procedure under the 1974 amendment to the Vermont Constitution. The Constitution doesn’t say when the Judicial Nominating Board is supposed to submit names to the Governor (again, look at that big footnote), so they followed the procedure they follow, which is to vet candidates and submit names.
Mid-December 2016 rolled around, and some members of the legislature were decidedly un-hip to the idea that the Governor could make a prospective appointment to a position that was not yet vacant. Representative Donald Turner filed a petition for a writ of quo warranto in the Vermont Supreme Court (2016 VT 135). The opinion isn’t clear on this, and I don’t have the statutes handy, but I’m guessing SCOV has original jurisdiction because of the constitutional issue. Senator Joe Benning joined Representative Turner’s filing (2016 VT 136), which turned out to be a very smart move, for reasons I’ll explain below. Senator Sears sought ten minutes as an amicus, or friend of the court, to argue, which was also granted (2017 VT 1). Hey, why. not? We’re in uncharted waters here, and ten minutes of argument is probably not going to kill anyone and may only help everybody figure out what to do.
The Supreme Court, recognizing there was a very tight time frame between the time of filing (December 16, 2016) and the time Governor Shumlin was going to leave office (January 4, 2017), immediately ordered that the Governor not make an appointment until the court heard argument on whether or not this was allowed. The Supreme Court also said that even though we don’t practice by writ in Vermont anymore, they’d take up the petition for writ of quo warranto because of the shortness of time, and also because that was the only basket of relief this situation fit into. Quo warranto is Latin for “by what authority,” although it also sounds like a good name for a racehorse or garage band.
First of all, SCOV tackles the issues of standing and ripeness. Standing only exists where a plaintiff has a stake in the outcome. There has to be actual, concrete injury to the plaintiff, and the injury can’t be speculative. I can’t sue my next door neighbor for not shoveling our common sidewalk because I might slip on the snow; I have to have actually slipped on the snow and gotten hurt in order to have standing in that matter. Also, there has to be causation. The action of the defendant must have an actual and direct link between the defendant’s action and the plaintiff’s injury. Last, there has to be redressability. There has to be some way to remedy the injury.
Because Senator Benning joined Representative Turner, the plaintiffs had standing. Since under the 1974 constitutional amendment senators vote to confirm an appointee, a senator has an actual stake in making sure he or she is assured that the vote is constitutional. They don’t get to vote on unconstitutional things, and the executive branch doesn’t get to take away the legislative branch’s ability to operate pursuant to the constitution. This is basic Separation of Powers 101. It’s unreasonable to expect that Senator Benning - and the other senators - should have to vote on something that potentially violates their oath of office.
The Governor, understandably, disagreed with all this. He also argued that this wasn’t even ripe to come to court yet. SCOV disagreed with that. Ripeness doesn’t just apply to fruit; it also applies to court cases. Courts are charged with the responsibility of deciding only controversies that come before them. They don’t go deciding law stuff for squeals and giggles. Since Governor Shumlin hadn’t even actually made an appointment yet, there was nothing to argue about. That’s like me suing my neighbor for not shoveling the walk today even though there’s no snow on the walk. It’s not ripe. By the way, my neighbors on either side are lovely people and I have no immediate plans to sue either of them.
SCOV says the legislators’ suit is ripe. The Governor had been saying he was going to make the appointment to fill Justice Dooley’s seat since September when it became clear that Justice Dooley did not want to be retained again. It was also well-known that the Judicial Nominating Board had sent a slate of possible nominees to the Governor for consideration.
SCOV also felt it was appropriate to enjoin an unconstitutional appointment before it was made. By issuing an injunction to prevent the appointment, no Senator had to cast an unconstitutional vote, and no Governor would be in the position to ask them to do that.
All that having been said, SCOV decided this was a justiciable matter, and turned to whether or not there was authority to fill the vacancy.
Long story short - the answer is no.
The reason is because the seat simply isn’t vacant. Justice Dooley still works there until March 31 and he still sits in that same chair and he’s still going to hear cases and ask questions. I believe it was Chief Justice Reiber who pointed out at the oral argument that they only own five chairs (this is not a call to the legislature to increase the Judiciary’s chair budget, but I’m sure they’d be more than ok with it if more funds were allocated to this co-equal branch of government. Just sayin’.).
The Vermont Constitution calls for appointment where there is a vacancy. SCOV starts with the plain meaning of the word “vacancy” to see what that means and how it should be used here. They busted out the Black’s Law Dictionary and finds a common definition of “vacancy.” Honestly, I was surprised to see they went to Black’s; I’d have thought if we were talking about plain meaning it would have been as effective, or even more effective, to go to Merriam Webster, since they don’t do a specialized dictionary. Heck, if we’re looking at the plainest of meanings, SCOV could have quoted a sign at a Holiday Inn, since pretty much everybody understands the concept of vacant when it comes to lodgings.
The Vermont Constitution authorizes the Governor to fill vacancies, but not to create vacancies. The position must be actually open, not conceivably open. If the Governor could make that kind of appointment, he or she could, theoretically, appoint people to jobs that aren’t even open yet. Just because a justice decides not to declare for retention does not render the job “open” since there is still a person doing the job, serving out the term. It is expected Justice Dooley will stay and that his position technically is not vacant until his term is done.
SCOV also points out that there is a provision in the statute for justices who are not retained. In the event that happens, by statute, it is expected the justice will finish his or her term unless he or she is removed for some other reason. SCOV sees that this situation is no different, and sees no reason why it would be.
SCOV concedes that it is important to be at least a little bit proactive. Justice Dooley effectively gave seven months’ notice that he was not going to be a justice anymore. That’s plenty of time for the Judicial Nominating Board to send names to the Governor for consideration. And it’s important for the Governor to be ready to appoint someone new so that there aren’t any delays in court proceedings and the government can function as normally and seamlessly as possible.
SCOV is really clear that their decision is not at all based on who the possible candidates are to take Justice Dooley’s position (and honestly, I don’t know if they even know), nor based on the political affiliations of either the outgoing Governor or incoming Governor. It is their to decide cases, regardless of their difficult or controversial nature, and will do so based on the Vermont Constitution.
Good post.
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