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IN THE SUPREME COURT FOR THE STATE OF VERMONT DOCKET NO. 2016-428 REPRESENTATIVE DONALD TURNER, SENATOR JOSEPH BENNING, PETITIONERS GOVERNOR PETER SHUMLIN, RESPONDENT, ORIGINAL JURISDICTION MEMORANDUM OF LAW OF AMICI RICHARD SEARS Daniel P. Richardson, Esq. Stephen F. Coteus, Esq. ‘Tarrant, Gillies & Richardson P.O. Box 1440 Montpelier, Vermont 05601-1440 I. __ Petitioners’ challenge is not an appropriate matter for the Court to resolve because it is based on a policy disagreement, not on the Governor’s lack of authority to act. Itis important to note, at the outset, that the question before the Court today “is not whether the solution tendered by the plaintiff is better, or wiser,” but simply whether Governor Peter Shumlin, by choosing a successor to replace a retiring Justice before that Justice has actually left the bench, will “dof] violence” to the Constitution. Ketcham v. Lehner, 149 Vt. 314, 317-18 (1988) (quoting Peck v. Douglas, 148 Vt. 128, 133 (1987). For the reasons that follow, he will not. A. The Governor has the power under the relevant constitutional provisions to appoint a successor to an outgoing judge at any time after the Judicial Nominating Board provides him with a list of well-qualified candidates. Under Vermont law, judicial appointment is a regimented process. A particular event triggers the commencement of the appointment process: Under 4 V.S.A. § 602, “when an incumbent does not declare that he or she will be a candidate to succeed himself or herself, the [Judicial Nominating] Board shall submit to the Governor the names of as many persons as it deems well qualified to be appointed to the office.” 4 V.S.A. § 602(b). The statute goes on to detail the steps the Judicial Nominating Board must take, including submitting all candidates to the Court Administrator to obtain information about professional disciplinary action, and then selecting by majority vote from the list a group of well-qualified candidates. See id. § 602(a). Importantly, the Judicial Nominating Board does not have discretion to delay performing this process based on considerations of faimess or practicality in light of, for example, the impending inauguration of a new Governor or an extended period between the incumbent's announcement of retirement and his actual date of retirement. Rather, the statute commands the Board to submit a list of well-qualified candidates to the Governor, whoever may be in office at the time, when an incumbent judge declares that he or she will not seek another term. The strictness of this provision is an important measure to prevent the appointment process from being infected with, or even appearing to be infected with, delay, gaming, or partisan polities. Once the Board delivers the list to Governor, the Governor is mandated to “fill a vacancy” from this list of candidates. Vi. Const. Ch. II, §§ 32, 33. Petitioners attempt, by parsing the word “vacaney,” to read into these constitutional provisions a requirement that the Governor refrain from carrying out his duty to act on the list of candidates until the moment the incumbent Justice, who has already irrevocably declared his intention to retire, actually steps down from the bench. This interpretation is untenable for several reasons. First, it is elementary that dictionary definitions have minimal utility in interpreting constitutional language. See Peck, 148 Vt. at 132 (“The standards for interpreting constitutional language and meaning, though related, are not the same as for ordinary statutes. Carions of construction, if applied, must be used more cautiously and sometimes differently.”). Thus, straining the bounds of practicality and undermining the non-partisan spirit of the relevant constitutional provisions in an attempt to adhere to a contemporary dictionary definition of a word or phrase, as Petitioners would do here, contravenes principles of constitutional interpretation. Second, Petitioners’ interpretation would be impractical, in light of the fact that Justices and Judges must declare their intention to seek or not seek retention by September Ist of the year before their term expires, 4 V.S.A. § 4(c), and said terms do not expire until April Ist of the following year, id. § 5(a). Because the Board is required to commence compiling alist of nominees upon this September Ist deadline, itis likely to deliver that list to the Governor with much time to spare before the retiring Justice’s term expires, as the Board did here. If not acted upon, during such a long gap of time, the list is likely to become stale, as well-qualified candidates would be left in limbo and forced by circumstances, finances, or other pressures to forfeit or forego a potential appointment in lieu of more stable, immediate, and secure gainful employment. Third, requiring the Governor, faced with a known and impending date of retirement, to ‘wait until that date or later to officially appoint a successor would place undue pressure on the Senate and unnecessarily create uncertainty in the judiciary. If a Governor were forced to wait until after April Ist, this would leave precious few weeks for the Senate, during its normal session, to confirm the appointee, or else leave the appointee, and indeed the entire judiciary, in limbo until the following year’s Legislative Session. It would effectively marginalize the Senate’s primary role of advice and consent by preventing the senate from acting in a timely manner. To prevent this period of uncertainty, the Senate could extend its regular session or convene a special session to complete confirmation hearings, but this would be a tremendous waste of time and resources especially considering that, as a practical matter, the Governor may well have made his choice of 1a suocessor months earlier. It would be a source of hardship for citizen senators most of whom must resume their daily occupations and jobs at the earliest date possible. ‘The drafters of these constitutional provisions could not have intended such an absurd result, B. Prior Vermont Governors have appointed successors to judicial offices based on an incumbent’s intent not to stand for retention and have made such appointments in advance of the judge or justice’s actual retirement. Finally, several Vermont governors have appointed judicial successors before an incumbent actually left office, and this practice has gone unchallenged until now. According to the State of Vermont archives, although Justice William H, Walker did not officially resign until September 24, 1887, James M. Tyler was appointed to replace him on September 17, 1887. Vt. Sec. of State, Vermont State Archives and Records Administration, Justices of the Supreme Court, available at https://www.sec.state.vt.us/media/308078/justices.pdf (last visited December 30, 2016). Likewise, Justice F. Ray Keyser, Sr. retired effective June 1, 1975 and Franklin 8. Billings, It. took office the following day, on June 2, 1975, but the Governor had appointed Justice Billings months earlier, on April 23, 1975. Id. ‘The example most akin the instant matter is the fairly recent retirement and replacement of District Court Judge Edward Cashman, On September 1, 2006, Judge Cashman decided not to seek retention and gave notice of his intent. B. Kinzel, Judge Edawrd Cashman to Retire VPR News (Sept. 2, 2006), available at http://www. vpr.net/inews detail/75472/judge-ed shman- to-retire/. Around September 14, 2006, the Judicial Nominating Board declared the opening for Judge Cashman’s seat and set a deadline of October 13, 2006 for applications. See A. Keays, Help Wanted: Judge, No Experience Necessary Rutland Herald (Sept. 14, 2006), available at http://www.rutlandherald.com/apps/pbes.diVarticle?AID=/20060914/NEWS/ /140321/1002/NEWSO1 (focusing on the simultaneous opening in the then-Superior Court created by the retirement of Judge Richard Norton). On January 25, 2007, Governor Douglas appointed Thomas Zonay to fill Judge Cashman’s seat, even though Judge Cashman was still sitting and would continue to occupy his office until the end of his statutory term. See Douglas Names Two to Bench Rutland Herald (Jan. 25, 2007), available at http://www.rutlandherald.com/ apps/pbes.dll/article? AID=/20070125/NEWS/701250364/1002/NEWSO1. On February 16, 2007, the Senate confirmed Judge Zonay to the remainder of Judge Cashman’s concurrent term. SJournal Feb. 16, 2007, available at http://www. leg.state.vt.us/docs/legdoc.cfin2URL=/ docs/2008/journal/s{070216.htm, Finally, on March 31, 2007, Judge Cashman officially stepped down and retired. 181 Vt. vii (noting that Judge Cashman retired effective March 31, 2007 and Judge Zonay assumed office March 1, 2007). In the Cashman example, there is a precedent for the INB to begin the review process following the announcement of a retirement, a Governor appointing the individual, the Senate confirming the app. :ment, and the candidate assuming office before the actual physical vacating of the position by the outgoing judge/justice. In 2007, no objections were filed or raised to Governor Douglas’ early appointment or the JNB's quick and effective work at vetting candidates. In that instance, the Senate had full and ample time to review the candidate and offer meaningful advice and consent. In short, the process worked as it was intended, and the overlap created neither constitutional crisis nor dilemma, It is important to keep in mind that longstanding practices of government inform the Court’s interpretation of the Constitution. See N.L.R.B. v. Noel Canning, 134 S. Ct, 2550, 2559- 60 (2014). “When there may be several ways that a legislature [or the Executive] may choose to implement a constitutional provision,” however, it is not the job of the Court “to seek out the preferable from among assorted proffered solutions.” Nor should it deem unconstitutional the less frequent of two parallel, longstanding practices that both comport with the language and spirit of the applicable constitutional provisions. ‘Thus, while the available historical records indicate that, more often than not, appointments to fill vacancies—at least on the Vermont Supreme Court— have occurred after the incumbent passed away or left office, see Vt. Sec. of State, Vermont State Archives and Records Administration, Justices of the Supreme Court, available at https://www.see.state,vt.us/media/308078/justices. pdf (last visited December 30, 2016), the above examples are evidence of a different longstanding practice—a practice that has gone unchallenged until now, This tradition, of selecting replacements for outgoing judges before an actual vacancy occurs, which has practical value and adheres closest to the spirit of the relevant constitutional and statutory scheme governing the appointment process, should not be deemed unconstitutional as a result of political maneuvering. While Petitioners may cast Governor Shum choice to act on the Board’s list of candidates as a politically charged move, a decision to strike down this practice as unconstitutional would reward a political crusade and, by way of precedent, permanently inject partisan politicking into the appointment process. Whether it is wise or prudent for the Governor to appoint a successor before an outgoing judge’s actual day of retirement is indeed a political question, and thus must be left to Legislature—to refine the appointment process within the bounds of the Constitution—or to the ballot box. See Brady v. Dean, 173 Vt. $42, 544 (2001) (“[CJourts should refrain from intervening in cases that present political questions.”) For all of these reasons, Petitioners’ petition should be dismissed. Il Petitioners’ challenge to the concept of vacancy overlooks the Senate Confirmation Process under Chapter II, § 32 of the Vermont Constitution, which would resolve any issue of timeliness or vacancy. Under the Vermont’s Constitut , there are two provisions governing the Executive's power to fill judicial vacancies. Govemnors may appoint judges under either § 32 or § 33 of the Chapter II of the Vermont Constitution. An appointment under Chapter Il, § 32 of the Vermont Constitution empowers the Governor fo appoint successors to outgoing judges “with the advice and consent of the Senate.” Vt. Const., Ch. II, § 32. Appointments under Chapter II, § 33 of the Vermont Cons jon are “interim appointments” and are made when the Legislature is not in session. Vt. Const, Ch. II, § 33. Both sections contain language vesting the initiation of this process with the Judicial Nominating Board, and both end with review and confirmation by the Senate. Where the two provisions differ is when the “appointment” takes effect to vest the candidate with the capacity to act. The Supreme Court has interpreted Chapter Il, § 33 of the 6 Vermont Constitution to mean that when the Governor aets pursuant to his interim-appointment power, the appointee may begin serving with “all the powers incident to the office” before he has been confirmed by the Senate. Id; see Wolfe v. Yudichak, 153 Vt. 235, 253-54 (1989) (opinion denying motion for re-argument) (interpreting Chapter II, § 33 and noting that “[w]e find nothing in the Constitution to establish a class of justices with different and diminished powers and prerogatives from those who have been confirmed by the Senate”) In contrast, there is no clear guidance of whether an appointment made under Chapter Il, § 32 ean act prior to Senate confirmation, Although the Vermont Supreme Court has not significantly interpreted this provision, there is some guidance from the United States Supreme Court, which has interpreted the Federal Constitution’s corresponding advice and consent provision in the Federal Constitution—Article Il, Section 2, Clause 2—to be the primary method of appointment and requires that the President’s selection to fill a vacancy be confirmed by the Senate before taking office. See N.L.R.B. v. Noel Canning, 134 8. Ct. 2550, 2558-59 (2014); Buckley v, Valeo, 424 U.S. 1, 126 (1976). This is an important distinction as it differentiates how the two provisions ate implemented and prevents § 33 from subsuming §32. In practice, § 33 is an emergency power, which is there to ensure continuity when immediate vaca s occur (eg., illness, death, and immediate resignations). Section 33 is vital in a state where the legislature is not in session a majority of the year and its members are made up of citizens with other professions and without the ability to simply meet outside of the term to vet judicial appointees. See Amanda Mitchell et al., State Legislative Length 1-3 (Univ. of Vt., Vt. Leg. Research Shop Apr. 28, 2008), available at https://www.uv edu/~vlrs/PoliticalPro ivesessionlength. Section 32, on the contrary is the traditional appointment method, which has language that tracks the federal Constitution and expressly involves the Senate in the appointment process. Traditionally, when the Governor fills a vacancy while the Legislature is in session, he acts under § 32, and thus his judicial appointments require confirmation by the Senate before they may serve, This makes sense given that when the Senate is siting and ready to act, the checks and balances between the Legislative and Executive branches contemplated by § 32 may operate with minimal risk of an extended vacancy. Cf. Noel Canning, 134 S. Ct, at 2558-59 (noting that the need to seek Senate approval is an important check and that appointment with advice and consent of the Senate is the primary and preferred method of filling vacancies, while the recess-appointment clause is merely an exception) It follows logically that the Governor’s selection of a replacement for an outgoing judge under § 32 is not, in and of itself, a complete appointment. When the Govemor acts under § 32, the Governor's selection is akin to a nominee whom the Senate must confirm in order to officially bestow upon that individual the powers of the office. There is no particular time limit on the Senate’s confirmation power, so it is uncertain precisely when the individual selected by the Govemor will officially possess the power to serve, and thus officially “fill” the anticipated vacancy. In this case, if Governor Shumlin acts pursuant to § 32, his selected successor to Justice Dooley would not be fully confirmed to “fill the vacancy” until after Justice Dooley retires. Governor Shumlin’s term of office overlaps by one day with the term of the incoming Legislature. ‘The Senate convenes for the first time on January 4, 2017, and the Governor’s term does not expire until the following day when his successor is swom into office, See hitp://legislature. vermont. gov/home/noteworthy/legislative-schedule/ (ast visited December 30, 2016). ‘The Governor may very well select a successor to Justice Dooley on his final day as Governor. Since the selection would occur during the term of the Senate, it would require the Senate’s approval of that nominee. In doing so, the Governor would be acting under Chapter Il, § 32, but the candidate, even if sworn into office would not take office. At that point, it would be up to the Senate to confirm this individual—a process that would continue the larger appointment process much closer to the date of Justice Dooley’s final days as an Associate Justice. This procedure is consistent with any definition of the term “vacancy” and would by consistent with the statutory and constitutional frameworks. The individual selected by the Governor to replace Associate Justice Dooley, if appointed under § 32, would not be officially vested with the power of the office until after Senate review and confirmation, Such a date could likely occur either right before or even after Justice Dooley’s offi al date of retirement, Such a process would, even under Petitioners’ restrictive definition of the word “vacancy,” would result in no constitutional transgression. Thus, Petitioners’ petition for extraordinary relief is unfounded. Moreover, the arguments they have raised will only trigger if the Governor seeks an interim appointment that would vest the candidate with immediate power and authority. Since the Governor has not made such an appointment or invoked such power, Petitioners’ harm is only speculative. They no standing because their injury has not yet occurred, see Hinesburg Sand & Gravel Co. v. State, 166 Vt. 337, 340 (1997), and there is not yet a ripe controversy, see Thomas v, Union Carbide Agricultural Products Co., 473 U.S. 368, 580 (1985) (finding a case not ripe because it involved “contingent future events that may not occur as anticipated, or indeed may not occur at all” (quoting 13 C. Wright, A. Miller, & E, Cooper, Federal Practice and Procedure § 3532 (1984))). Moreover, Petitioners” proffered interpretation seeks constitutional review where none is necessary. Judicial restraint augers against forcing decisions to rest on constitutional interpretation or fomenting conflict where either the provisions can be harmonized or adequate lesser grounds are available to resolve the matter. State v. Bauder, 181 Vt. 392, 404 (2007); see also In re Sealed Documents, 172 Vt. 152, 156 (2001) (“Our tradition of addressing issues of constitutional significance only when the matter is squarely and necessarily presented counsels restraint and forebearance as to the broader questions of access on these alternative grounds.”); Gallipo v. City of Rutland, 173 Vit. 223, 235 (2001) (“Our goal is also to harmonize statutes and not find conflict if possible.”). By emphasizing the Senate’s role to advice and consent on the appointment of judicial officers appointed during the term, the issue of vacancy is removed and the matter can be resolved without nullifying or curtailing the statutory structure in place that has been effective since its first adoption in the late 1966. See 4 V.S.A. § 602 (first promulgated in its current form through the Act of 1966, Sp. Sess., No. 64, § 2). For these reasons, Amicus requests the Court consider and apply the distinctions between § 32 and § 33 to read the provisions in harmony with the current factual situation, which will allow the Governor to make an appointment to the Vermont Supreme Court on January 4, 2017 when the Vermont Senate has convened, and which will preserve the advice and consent role of the senate in vetting and reviewing the chosen appointee in the time remaining between the date of appointment and Justice Dooley’s retirement. IIL. Petitioners’ challenge omits necessary parties who are the effective gatekeepers to judicial appointments under Chapter II, § 32 and § 33 of the Vermont Constitution and who are necessary parties to any relief. Petitioners’ claims rest on the definition of the word vacancy and questioning when such a ‘vacancy occurs. Petitioners argument is expected to focus on when a “vacancy” occurs that would 10 trigger the Governor's power to appoint. Under Vermont law, however, such an interpretation ignores the limited role played by the Governor in the judicial appointment process. The judicial nominating process is effectively a thre step process, As laid out under either Chapter II, § 32 or Chapter II, § 33, the Judicial Nominating Board (hereinafter “JNB”) is the body responsible for tiating the process. As codified in statute at 4 V.S.A. § 602(b), the JNB is obligated once a vacancy occurs or becomes irrevocably apparent (a decision not to stand for retention) to seek candidates, vet them accor 1g to ten attributes and pass along the names of all well qualified candidates to the Governor. The second phase then begins with the Governor conducting due diligence and appointing candidates from the list to fill the available positions. At that point, the appointed candidates come before the Senate and Senate Judiciary Committee for confirmation. Just as the Senate cannot act without receipt of an appointment from the Governor, the Govemor cannot act without the initial work of the JNB. It is the non-partisan JNB that both the Vermont Constitution and statutory structure vest with the authority to initiate and determine whether an office is vacant or soon-to-be vacant for the purposes of a judicial (or Public Service Board) appointment. 4 V.S.A. § 602(b). Nothing in § 32, §33, or the statute ties the Governor to any temporal timeline, except the order of stages. In other words, the sole trigger for the Governor toa is the receipt of names from the JNB. ‘That is the temporal trigger for making an appointment. There is no independent authority for the Governor to check, review, or hold a list of candidates, until the vacaney comes closer. Therefore, any relief sought by Petitioners or decision affecting the meaning of the term “vacancy” must include the JNB as a party as the JNB is the primary reviewer and arbiter of whether there is an existing or imminent vacancy. FEN Similarly, any relief granted (o Petitioners will impact the Vermont Senate by either denying or substantially delaying its ability to review an appointment. Therefore, itis a necessary party as it, like the Governor and the JNB is needed to adjudicate, grant relief, and bind the process going forward with the relief sought by Petitioners. All three parties are named in the relevant, constitutional sections and statutory provisions. All three have a vested interest in the process and all three would be material affected by any judgment rendered by the Court, All three are necessary parties to present petition. See City of Montpelier v. Capital Sav. Bank, 75 V1. 433 (1903) (City ‘was a necessary party to any litigation concerning where funds under its control would be paid, even when the amount was not at issue). Under V.R.C.P. 12(b)(7), the failure to join a necessary party is grounds for dismissal. 171234 Canada, Ine, v. AHA Water Co-op, Ine., 184 Vt. 633, 637 (2008). In this case, Petitioners have waited until the last moment to launch their petition against the present judicial nomination, and in the process, they have omitted necessary parties. The relief Petitioners seek cannot be ‘granted without the INB and to a lesser degree the Senate. By failing to include these necessary parties, any relief must necessarily be incomplete, and the Petition should be dismissed as a matter of law under V.R.CP. 12(b)(7). IV. Conclusion For the foregoi reasons, Amicus Curiae, Senator Richard Sears requests that the Court dismiss the present petition or deny the relief sought by Petitioners as inconsistent with past practice, the language of the constitutional and statutory sections as a whole, and inconsistent with the Vermont tradition of working to provide continuous, uninterrupted leadership in its judicial offices. 2 Dated at Montpelier, Vermont this 30" day of December, 2016. Richard W. Sears, Chair of the Senate Judiciary Committee By: &) (hg, Daniel P. Richardsoi, BS 4. Stephen F. Coteus, Esq. Tarrant, Gillies & Richardson P.O. Box 1440 Montpelier, Vermont 05601-1440 B

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