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 05601-1440I. __ 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 provisionis 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 beleft 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 andstatutory 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
6Vermont 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
10trigger 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.
FENSimilarly, 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.
2Dated 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