MONTPELIER — Gov. Peter Shumlin’s office said Tuesday that he plans to appoint a successor to replace retiring Vermont Supreme Court Justice John Dooley, even though he won’t leave the bench until after Shumlin leaves office.
Dooley, who has served on the Vermont Supreme Court since former Democratic Gov. Madeleine Kunin appointed him in 1987, has announced that he will not seek retention and retire from the court in March. The 72-year-old justice will retire as the third-longest serving member of the state’s highest court.
Shumlin, who is not seeking re-election and will leave office in early January, is planning to appoint Dooley’s replacement, according to spokeswoman Susan Allen. Allen said state statute and the rules governing the state’s Judicial Nominating Board call for the sitting governor to begin the process of choosing a successor when a justice announces retirement.
“After his decision to retire was announced, the Governor asked his counsel to look at the nominating statute and let him know what the process would be. The Governor’s Office also consulted with legislative leaders, including the Chairs of the House and Senate Judiciary Committees, and the Chair of the Judicial Nominating Board,” Allen said in a statement provided to the Vermont Press Bureau. “As it turns out, the statute and Board rules are clear: when a Supreme Court Justice announces they will not be a candidate for retention, the nominating board – upon notification by the Governor of the vacancy – “shall” initiate the process to send candidates to the Governor.”
Allen said the Judicial Nominating Board is already in the process of sending Shumlin recommendations for filling two open trial judge positions. She said the board is now prepared to accept applications and make recommendations to fill the pending vacancy on the Vermont Supreme Court.
“The Governor plans to interview qualified candidates and name a successor to Justice Dooley later this Fall,” Allen said in her statement.
Sen. Dick Sears, the Democratic chairman of the Senate Judiciary Committee, said Tuesday that the Legislature’s lawyers have confirmed that Shumlin can replace Dooley.
“It looks like the governor is correct. It all depends on how quickly the Judicial Nominating Board can send a name to the governor. The statute would appear to be what [Shumlin’s legal counsel] Sarah London looked at,” Sears said.
Brittney Wilson, spokeswoman for Republican Lt. Gov. Phil Scott, the GOP’s nominee for governor, questioned the legality of Shumlin replacing Dooley. She said Shumlin’s push to name a successor is a sign that the governor believes Scott will defeat the Democratic nominee, Sue Minter.
“Clearly he thinks Phil is going to win. So, that’s a good sign from our point of view and the point of view of Vermonters who want Montpelier to focus on the economy and affordability. However, there are some obvious questions,” Wilson said.
She questioned when Shumlin would make the nomination, and whether the current Senate or the one elected in November would confirm the nomination.
“If Dooley is stepping down after Shumlin leaves office, how is it legal for him to nominate someone to fill a vacancy that doesn’t yet exist? And how can it be reviewed by a Senate that hasn’t yet been elected?” she said.
Wilson pointed to the Vermont Constitution, which states that a governor “with the advice and consent of the Senate, shall fill a vacancy in the office of the Chief justice of the State, associate justice of the Supreme Court or judge of any other court.”
The Legislature adjourned in May and is not slated to return until January. But Sears said the Vermont Constitution allows a judge or justice to assume office and serve before the Senate provides its consent.
It is less clear what would happen if a Shumlin appointee did not begin serving until after he left office. According to the administration, if Dooley serves his full term through March 2017, his replacement would begin hearing cases on April 1 and could do so before being confirmed by the Senate, which has traditionally confirmed judges at the end of the legislative session.
Shumlin could swear in Dooley’s successor before he leaves office with a delayed effective date. Administration officials are not aware of a similar situation in recent memory, however.
Wilson also questioned whether a new list of candidates would be drafted or whether the Judicial Nominating Board would select from an existing pool.
Wilson said allowing Shumlin to select a replacement for Dooley could set a precedent for other nominations and appointments in state government.
“Extending Shumlin’s twisted legal logic to its conclusion, he could theoretically appoint all of the next governor’s cabinet before leaving office — which is really absurd; would be an unprecedented and disruptive overreach of a governor; and would really call Peter Shumlin’s ethics into question, again,” she said.
Minter spokesman Elliot Bent said Shumlin should nominate a justice if he has the authority to do so.
“If the Governor has legal authority to act now, Sue believes he and the nominating committee should ensure continuity on the court. When previously asked, Sue said that she would nominate a justice who is qualified, fair, impartial and known for integrity. Sue also cited the need to consider diversity of the court in any decision-making process,” Bent said.
This story was updated at 4 p.m. and 5:50 p.m to include comments from the Scott and Minter campaigns, respectively.