MONTPELIER — The Vermont Supreme Court has granted a motion by Sen. Joe Benning to join a petition to the court aimed at preventing Gov. Peter Shumlin from appointing a Supreme Court justice before leaving office.
Benning, a Republican from Caledonia County, said he was asked by Rep. Donald Turner’s attorneys to intervene in the case to help boost Turner’s standing before the court. Turner, the House minority leader, filed a petition with the court last week challenging Shumlin’s authority to fill a pending vacancy on the court. Turner plays no official role in the selection of a Supreme Court Justice. As a senator, however, Benning, along with the full Senate, must advise and consent on nominations.
“One of the issues that the Supreme Court has asked to have briefed is the issue of standing,” Benning told the Vermont Press Bureau Wednesday after the court approved his motion. “Basically, anybody who brings in action in court has to prove initially that they have a right to bring that action.”
“When told by the Supreme Court to bring a brief on the issue of standing, it is essentially saying, ‘This is how I contend that I have the right to ask you to do what I am asking you to do,” he added.
Shumlin is attempting to name a replacement for Justice John Dooley, who announced in September that he would not seek retention. Shumlin said shortly after Dooley’s announcement that he planned to name Dooley’s replacement. That came as a surprise to many, since Dooley’s term will be completed until the end of March.
The Judicial Nominating Board completed its statutorily required work and forwarded the names of six people that are qualified for the position. But Turner filed his petition with the Supreme Court last week challenging the Shumlin’s authority to fill a vacancy, arguing that the vacancy will not exist until after Shumlin leaves office.
The court issued an order preventing Shumlin from naming a replacement, at least temporarily. Both sides are required to file briefs with the court by Friday that includes “an agreed statement of facts and memoranda of law on this matter.” The court requested the memoranda include Turner’s standing as well as “the substantive issues raised.”
The Shumlin administration has maintained that state law allows the governor to begin the replacement process and name an appointee when a justice does not seek retention. Shumlin spokesman Scott Coriell referred questions to Assistant Attorney General William Griffin, who is representing the governor in the case. Coriell said Shumlin has already interviewed the six candidates forwarded to him by the Judicial Nominating Board.
Benning said he believes the Vermont Constitution precludes Shumlin or any governor from appointing a justice until there is an actual vacancy on the bench. Benning said there is no vacancy yet because Dooley will continue to write opinions, supervise staff and receive a paycheck through March.
“That office, in my eyes, is not vacant, pursuant to the language of the Constitution,” he said. “There is a battle going on right now on interpretation over the word vacancy and the governor’s authority to appoint someone is attached to the word vacancy. In the plain meaning of the word, if he was to appoint someone today, that office is not vacant.”
The Supreme Court will hold a hearing on Jan. 3 — two days before Shumlin leaves office — on the matter. The court could find that Turner and Benning do not have standing, or dismiss the petition for some other reason, before that date, however.
People familiar with the case said the court could find that the Supreme Court is not the proper venue to challenge such an appointment because it is the Senate that advises and consents on appointments. The court could also find that the petition filed by Turner and Benning is premature, because the governor has yet to appoint someone and therefore has not yet “aggrieved” an person or entity.
Benning, a criminal defense attorney, said he agreed to join the petition at the request of Turner’s attorneys to provide legal standing for the petition to be heard by the court.
“I am entering into the case because I have one level of standing that strengthens the argument of standing for any participants in the case,” he said.
The Supreme Court is taking the matter seriously, Benning said. The court has scheduled a full hour of discussion rather than the customary 30 minutes for oral arguments, according to Benning. Justice Beth Robinson, who was appointed by Shumlin and previously served as his legal counsel in the governor’s office, has recused herself from the case.