Vermont Supreme Court Rules That Shumlin Can’t Choose New Justice | Off Message

Vermont Supreme Court Rules That Shumlin Can’t Choose New Justice


From left, Rep. Don Turner, Sen. Joe Benning and their attorney, Rep. Janssen Willhoit. - STEFEN HARD
  • Stefen Hard
  • From left, Rep. Don Turner, Sen. Joe Benning and their attorney, Rep. Janssen Willhoit.
As Gov. Peter Shumlin concluded his farewell speech, the Vermont Supreme Court blocked what was to be his final act in office: appointing a replacement for outgoing Justice John Dooley.

The court was unanimous in its ruling Wednesday afternoon that the state constitution does not give the governor authority to appoint an official to a seat that won’t be vacated until after the governor leaves office.

“Both the attorney general and I don’t read the law the way they interpreted it but obviously I’m going to live by the court decision,” Shumlin told reporters after his speech and the unveiling of his official portrait.

Rep. Don Turner (R-Milton) and Sen. Joe Benning (R-Caledonia) sued the governor in late December in a last ditch effort to prevent him from appointing Dooley’s successor. Dooley made it clear in September that he would retire in April.

Now, Republican governor-elect Phil Scott will choose Dooley’s successor, likely from the same list of six candidates given to Shumlin by the 11-member Judicial Nominating Board.

Shumlin said he’s confident Scott will “do a good job” selecting a new justice, noting that all six candidates are highly qualified.

In an emailed statement, Scott spokeswoman Rebecca Kelley wrote that the governor-elect “is pleased the court provided clarity on this matter. As he said prior to the result being issued, he had faith that the court would make the appropriate ruling and confidence in its decision, regardless of the outcome. He looks forward to reviewing the recommendations of the Judicial Nominating Board.”

The justices deemed the Shumlin administration’s arguments “unavailing” and concluded, “there is no support for respondent’s position that the Vermont Constitution gives him the authority to appoint a successor for an opening on this Court that does not become vacant — unoccupied — until after he leaves office. Respondent 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.”

“I think this decision is very important for the future of Vermont,” Turner said. He went on to assert that, “This will never come up again, when it comes to a governor trying to appoint a Supreme Court justice or a Public Service Board member or a Green Mountain Care Board member or some other member into the tenure of another governor.”

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