163 A.3d 1173
Vt.2017Background
- Justice John Dooley’s six-year term expires April 1, 2017; he did not file a retention declaration by Sept. 1, 2016 and will remain in office until April 1, 2017.
- Governor Peter Shumlin (leaving office Jan. 5, 2017) announced intent to appoint Dooley’s successor and the Judicial Nominating Board transmitted six nominees to him on Dec. 16, 2016.
- Rep. Donald Turner filed a quo warranto petition Dec. 21, 2016 seeking to enjoin the Governor from appointing a successor before the office is vacant; Sen. Joseph Benning intervened and joined the petition.
- The Court provisionally enjoined the Governor and held expedited briefing and a hearing; Benning argued he had standing based on the Senate’s advice-and-consent role.
- The core legal question: whether the Governor may appoint a justice in anticipation of a vacancy that will not arise until after the Governor’s term ends.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioners’ challenge is ripe | Governor’s announced intent to appoint and Board’s transmission make injury imminent | Appointment and Senate confirmation may not occur, so dispute is premature | Ripeness satisfied — injury is concrete and imminent |
| Whether petitioners have standing | Benning: as a senator he has a concrete interest in advice-and-consent being applied to a constitutionally valid appointee | Governor: legislators must meet ordinary standing rules; political questions counsels restraint | Sen. Benning has legislative standing to protect his advice-and-consent duty |
| Whether political question doctrine bars review | Plaintiffs: the question is interpretation of constitution, suited for judicial resolution | Governor: appointment is political/executive prerogative | No political question — judicially manageable constitutional issue |
| Whether Governor may appoint successor before vacancy that occurs after his term ends | Plaintiffs: Constitution authorizes Governor to fill only actual vacancies; office is not vacant until incumbent leaves | Governor: constitution allows nomination/anticipatory appointment; statutory rules permit preparatory submissions | Held: Governor lacks authority to appoint a successor to take effect after his term; appointment power is limited to actual vacancies or those that occur while governor remains in office |
Key Cases Cited
- Brod v. Agency of Nat. Res., 936 A.2d 1286 (Vt. 2007) (standing and case-or-controversy requirement)
- Baker v. Carr, 369 U.S. 186 (U.S. 1962) (case-or-controversy and political-question factors)
- Raines v. Byrd, 521 U.S. 811 (U.S. 1997) (rigorous standing inquiry when adjudicating separation-of-powers disputes)
- Peck v. Douglas, 530 A.2d 551 (Vt. 1987) (background on 1974 constitutional amendments to judicial selection)
- Dennis v. Luis, 741 F.2d 628 (3d Cir. 1984) (legislators had standing to challenge executive circumvention of advice-and-consent)
- Zemprelli v. Thornburg, 407 A.2d 102 (Pa. Commw. Ct. 1979) (senator standing to enforce governor’s appointment timing under constitution)