McCormack v. Scott ( 2024 )

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 24-CV-02419
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org
Richard McCormack et al v. Phil Scott et al
Ruling on Motion to Dismiss
On April 15, 2024, Defendant Governor Phil Scott selected Ms. Zoie Saunders to
serve as Secretary of Education from a list of three candidates approved by the State
Board of Education. See 3 V.S.A. § 2702(a). He promptly submitted her name to the
Senate for its advice and consent. 3 V.S.A. §§ 256–257, 2702(a). On April 30, the Senate
voted her nomination down. In response, the Governor appointed Ms. Saunders on an
interim, temporary basis until February 28, 2025, or until a “successor is appointed and
has qualified.” Two Senators, Tanya Vyhovsky and Richard McCormack, who voted with
the majority that rejected Ms. Saunders’ nomination, then filed this action challenging
the Governor’s interim appointment of Ms. Saunders. 1 They argue that the Governor
has no authority to make interim appointments of agency secretaries without seeking the
advice and consent of the Senate as set forth in 3 V.S.A. §§ 256–257. That the Governor
has done so, they argue, nullifies their duty to provide advice and consent. They argue
that everything Ms. Saunders has done in office since April 30 is ultra vires and invalid.
The seek declarations to those effects.
The Governor seeks dismissal. He argues that the court has no subject matter
jurisdiction on ripeness, standing, and political question grounds. On the merits, he
disagrees with the Senators’ interpretation of 3 V.S.A. §§ 256–257, but more
fundamentally, he argues that he has independent constitutional authority to make
interim appointments without the advice and consent of the Senate under Vt. Const. ch.
II, § 20.
Oral argument was held on September 26, 2024. The Senators were represented
by John Franco, Esq. The Governor was represented by David Golubock, Assistant
Attorney General.
Standing/Ripeness/Political Question
The justiciability issues must be analyzed with reference to the claim as the
Senators have framed it. It is improper to reach the merits prior to determining
1
The Court refers to the Defendants collectively as the Governor for ease of reference, and because Governor Scott’s
actions, not Ms. Saunders’, are at issue in this case.
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standing. 2 See Arizona State Legislature v. Arizona Independent Redistricting Com’n,
576 U.S. 787, 800 (2015) (“Although we conclude that the Arizona Legislature does not
have the exclusive, constitutionally guarded role it asserts, one must not ‘confus[e]
weakness on the merits with absence of Article III standing.’” (citation omitted)); Valley
Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454
U.S. 464, 484 (1982) (“The requirement of standing ‘focuses on the party seeking to get
his complaint before a federal court and not on the issues he wishes to have
adjudicated.’” (citation omitted)); Committee on the Judiciary of the United States House
of Representatives v. McGahn, 968 F.3d 755, 762 (D.C. Cir. 2020) (“When determining
whether a plaintiff has Article III standing, the court must assume that the [plaintiff]
will prevail on the merits.”).
To that end, the Senators assert that the Governor has no lawful authority to
appoint any secretary of any agency on a so-called interim basis under any
circumstances, much less one that the Senate already has refused to confirm, without
immediately seeking the advice and consent of the Senate. Assuming that the Senators
will prevail on the merits of that claim, the Governor’s interim appointment of Ms.
Saunders clearly nullifies their statutory duty to provide advice and consent. With that
framing, the Senators do not lack standing, their claim cannot be unripe, and the
political question doctrine does not prevent the court from reaching the merits.
The Senators argue that Turner v. Shumlin, 2017 VT 2, 204 Vt. 78, counsels
strongly in favor of their standing here. The Governor argues that Turner was poorly
decided insofar as it principally relies on authorities that predate and do not reflect
Raines v. Byrd, 521 U.S. 811 (1997), which is widely considered to have strictly limited
the breadth of legislator standing. See 13B Wright & Miller et al., Fed. Prac. & Proc.
Juris. 3d § 3531.11.2 (“The 1997 decision in Raines v. Byrd establishes strict limits on
any theory of standing that might be advanced by a member of Congress who seeks to
challenge an Act of Congress. These limits, drawn from separation-of-powers concerns
that mimic political-question doctrine, may well preclude such standing entirely. They
also will severely limit standing to challenge executive action, although there may be a
better opportunity to achieve standing in this setting.” (footnotes omitted)). The
Governor would have the court adopt Raines for purposes of Vermont’s standing doctrine
notwithstanding Turner. He also argues that Turner is distinguishable because the
Senate’s advice and consent authority in that case had a constitutional source whereas
here it is statutory only.
The facts of Turner are straightforward. Then-Governor Shumlin announced that
2
The Governor interprets the constitutional and statutory provisions at issue in this case and concludes that they do not
prevent the Governor from making an interim appoint and therefore nothing he has done harms the Senators, who therefore
lack standing. And because any injury they might suffer in the future has not yet happened, they argue, their claim is not
ripe. Put simply, he reaches the merits to show that there is no standing. But these arguments put the substantive cart
before the justiciability horse. The standing inquiry assumes that the plaintiffs’ claim, as they have framed it, will be
meritorious. Once standing is shown, the merits may be reached. One can have standing to assert a claim that has no merit.
For its part, the ripeness doctrine assumes that the “asserted injury would be adequate” and focuses merely on the timing of
its occurrence. 13B Wright & Miller et al., Fed. Prac. & Proc. Juris. § 3531.12 (3d ed.) (“Ripeness and mootness easily
could be seen as the time dimensions of standing.”).
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he would not seek another term. With Governor Shumlin still in office, Justice Dooley
indicated that he would not seek retention for another term in the Supreme Court. The
timing of the expirations of these two terms was such that Governor Shumlin would be
out of office before Justice Dooley. Governor Shumlin then announced that he would fill
the “vacancy” on the Supreme Court due to the impending termination of Justice
Dooley’s term. A House member, later joined by Senator Benning, sued Governor
Shumlin. The substantive dispute was whether Governor Shumlin could appoint a new
justice in anticipation of Justice Dooley’s departure, or whether the succeeding governor,
the one in office when the vacancy would actually materialize, would make that
appointment.
Governor Shumlin argued that the plaintiffs lacked standing. The standing
question turned to whether Governor Shumlin’s anticipated exercise of his appointment
power would undermine Senator Benning’s duty to provide advice and consent regarding
that appointment. 3 Turner v. Shumlin, 2017 VT 2, ¶ 14, 204 Vt. 78. The Court
explained:
Although legislators, like other plaintiffs, must satisfy these same
elements [the traditional injury, causation, redressibility elements] to
demonstrate standing, separation of powers and the limited role of the
judiciary compel particular scrutiny in determining whether there is an
injury in fact.
Generally, “legislators have a legally protected interest in their right
to vote on legislation and other matters committed to the legislature, which
is sometimes phrased as an interest in ‘maintaining the effectiveness of
their votes.’” “Not every affront to a legislator’s interest in the effectiveness
of his [or her] vote . . . is an injury in fact sufficient to confer standing to
sue.” But “legislators, as legislators, are granted standing to challenge
executive actions when specific powers unique to their functions under the
Constitution are diminished or interfered with.” Legislative standing,
however, is not available “to obtain a result in a courtroom which [a
legislator] failed to gain in the halls of the Legislature.”
Applying these general principles, courts have found legislative
standing when a governor’s conduct concerning the appointment of state
officers interfered with the complaining legislators’ constitutional duty to
provide advice and consent with regard to the appointments. In [one case],
for example, the court held that eight legislators had standing to challenge
the governor’s appointment of a person as “acting” commissioner after the
legislature had rejected the governor’s nomination of the same person in the
same post. The legislators complained that the governor had circumvented
the process of advice and consent, thereby nullifying their votes. The court
agreed that the legislators had standing to protect their unique statutory
right to provide advice and consent. The court further found that there were
3
The ruling on standing is predicated on the advice and consent duty of Senator Benning only.
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no prudential concerns that would have barred the legislators’ suit on
standing grounds, given that the legislators could not obtain redress
through legislative means.
In [another case], the court held that a state senator had standing to
challenge the governor’s failure to appoint certain state officers within the
time provided by the state constitution. The court based its holding on the
senate’s constitutional duty to provide advice and consent as to the
appointments in question.
Turner v. Shumlin, 2017 VT 2, ¶¶ 12–15, 204 Vt. 78 (emphasis added, citations omitted).
After that, the Court summarily concluded:
With these legal principles in mind, we conclude that Senator Benning has
standing to challenge respondent’s authority to appoint Justice Dooley’s successor.
As a member of the Vermont Senate, Senator Benning has the constitutional right
and duty to give “advice and consent” on the Governor’s nomination of an
Associate Justice to this Court. Vt. Const. ch. II, § 32. That right necessarily
encompasses an interest in being assured that his vote—pursuant to his
constitutional duty to provide “advice and consent” on the Governor’s Supreme
Court appointments—is exercised with respect to a properly named appointee
under the Vermont Constitution.
Id. ¶ 16. It went on to even more quickly dismiss any concerns that the case presented a
political question. Id. ¶¶ 19–21.
In analyzing the matter, the Court, whether in reference to some of the cited cases
or as to the facts of Turner itself, several times characterized the duty to provide advice
and consent as constitutional. The Governor argues that the constitutional nature of the
duty in Turner materially distinguishes that case from this. Here, there is no
constitutional duty to provide advice and consent. The duty is statutory only. See Vt.
Const. ch. II, § 20; 3 V.S.A. §§ 256–257, 2702(a).
Nothing in the Turner decision appears to depend on whether the duty to provide
advice and consent was prescribed by constitution rather than statute, and the Governor
does not explain why that should make any fundamental difference to the standing
question. Indeed, not one of the cases cited in Turner hints that the distinction matters,
and among those are citations to Third Circuit cases arising out of a statutory duty to
provide advice and consent in the U.S. Virgin Islands. See, e.g., Turner, 2017 VT 2, ¶ 14
(expressly recognizing that the duty to provide advice and consent at issue in Dennis v.
Luis, 741 F.2d 628 (3d Cir. 1984) was statutory). The U.S. Virgin Islands does not yet
even have a constitution. See https://en.wikipedia.org/wiki/United_States_Virgin_
Islands. Turner is not distinguishable on this basis.
Otherwise, Turner is remarkably on point. If Senator Benning had standing to
argue that the manner by which Governor Shumlin intended to appoint a Supreme Court
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justice was unconstitutional because it would diminish the vitality of his duty to provide
advice and consent, even though there was no argument about whether the Senate’s
exercise of that right would be respected, then it is very difficult to see why the Senators
here would not have standing to argue that they in fact provided advice and consent and
the Governor proceeded to completely ignore it, nullifying their successful votes to not
confirm his appointment for Secretary of Education.
Nor can the court simply sidestep Turner in favor of applying federal precedent
that may counsel in favor of a different outcome. The Vermont Supreme Court has been
crystal clear that Vermont courts are not “bound by each word stated in the United
States Supreme Court’s—and any other federal court’s—standing precedents,
particularly where those developments have occurred without discussion or mention in
our caselaw. Vermont courts are not obliged to follow federal standing rules because
standing therein is ultimately determined by the Vermont Constitution.” Ferry v. City of
Montpelier, 2023 VT 4, ¶ 15, 217 Vt. 450. Turner is on point and controlling. The
Senators have standing in this case.
It is similarly clear that the Senators’ claim is ripe. “Courts will ordinarily not
render decisions involving events that are contingent upon circumstances that may or
may not occur in the future.” In re Robinson/Keir P’ship, 154 Vt. 50, 57 (1990). The
Senators are not waiting for something to happen. As they have framed their claim, the
harm already has occurred. Their vote has been ignored.
Nor does this case present a nonjusticiable political question. As the Turner Court
remarked, “Not every gubernatorial action is a political question immune from judicial
scrutiny, regardless of whether it comports with the Constitution. The issue here is not
executive discretion or prerogative, but rather the meaning of the Vermont Constitution,
which this Court must determine.” Turner v. Shumlin, 2017 VT 2, ¶ 21, 204 Vt. 78. The
court perceives no reason why the political question doctrine should cause the court to
abstain from determining the substantive question presented.
On the Merits
The Governor appoints a Secretary of Education from a list of no fewer than three
candidates selected by the State Board of Education. 4 3 V.S.A. § 2702(a). The Secretary
serves at the Governor’s pleasure and is a member of his Cabinet. Id. § 2702(b). The
appointment is subject to the Senate’s advice and consent. Id. ¶ 2702(a). All secretaries
of agencies appointed by the Governor are subject to the advice and consent of the
Senate. 3 V.S.A. §§ 256(b), 257(b).
There is no constitutional provision subjecting the Governor’s appointment of
agency secretaries to the advice and consent of the Senate (or anyone else). Rather, the
general provision is as follows: “The Governor, and in the Governor’s absence, the
Lieutenant-Governor, shall have power to commission all officers, and also to appoint
officers, except where provision is, or shall be, otherwise made by law or this Frame of
4
There is no statutory time limit as to how long the Board may take to produce such a list once there is a vacancy.
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Government; and shall supply every vacancy in any office, occasioned by death or
otherwise, until the office can be filled in the manner directed by law or this
Constitution.” Vt. Const. ch. II, § 20.
The Senators argue as follows. Section 20 of the Constitution limits the
Governor’s appointment powers to any relevant provisions of law, such as 3 V.S.A. §§
256–257, 2702(a). These statutes address the entire subject matter and leave no room
for any appointments of interim Secretaries on a temporary basis without the advice and
consent of the Senate. Among them, § 256 primarily addresses appointments made when
the legislature is in session, and § 257 primarily addresses appointments when the
legislature is out of session. Section 256(b) expressly says, “Notwithstanding any other
provision of law, all secretaries of State agencies . . . shall take office only with the advice
and consent of the Senate except in the case of an appointment to fill a vacancy when the
General Assembly is not in session in which case the appointee may take office subject to
the provisions of section 257 of this title.” Section 257(b) provides: “When a vacancy
occurs in an office requiring appointment with the advice and consent of the Senate, an
appointment may be made to fill the vacancy. If the appointment to fill the vacancy is
made during any adjournment of the General Assembly the person appointed may
validly function in that office during adjournment until the Senate convenes at the next
regular, adjourned, or special session and acts upon the appointment submitted
forthwith by the Governor; or if the appointment to fill the vacancy is made during any
session of the General Assembly, the person appointed may validly function in that office
until the Senate shall act upon the appointment submitted forthwith by the Governor.
Thereafter the appointee shall continue in office if the Senate consents to the
appointment.”
The Governor instead argues that he has direct, constitutional authority to make
interim appointments without the advice and consent of the Senate under Vt. Const. ch.
II, § 20. Section 20 says that vacancies are made in the manner directed by law or the
Constitution and that the Governor “shall supply every vacancy in any office, occasioned
by death or otherwise, until the office can be filled in the manner directed by law or this
Constitution.” Vt. Const. ch. II, § 20 (emphasis added). There are no statutes that seek
to regulate this appointment authority of the Governor that precedes the regular process.
The debate may be framed by two competing dichotomies. As the Governor sees it,
the constitutional provision divides appointments into two categories—regular or
“permanent” appointments made subject to whatever statutes control the process and
temporary or “interim” appointments made pending completion of any regular statutory
process. As the Senators see it, 3 V.S.A. §§ 256–257 divides agency secretary
appointments into a different two categories—those made when the legislature is in
session and those made when the legislature is not, and both kinds require the Senate’s
advice and consent. To the Senators, these statutory provisions are seamless and all
encompassing, allowing no room for temporary appointments outside their scope.
The Governor’s powers under Vt. Const. ch. II, § 20 long predate any advice and
consent authority of the Senate. Vermont was unicameral—there was no Senate—until
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1836. Before that, beginning in 1777, the “Supreme Executive Power” was exercised by
the Governor and the Executive Council. Vt. Const. (1777) ch. II, § 3. Then, the
appointments clause read as follows: “The Governor, and in his absence the Lieutenant
or Deputy Governor, with the Council—seven of whom shall be a quorum—shall have
power to commissionate all officers (except those who are appointed by the General
Assembly), agreeable to this frame of government, and the laws that may be made
hereafter; and shall supply every vacancy in any office, occasioned by death, resignation,
removal or disqualification, until the office can be filled in the time and manner directed
by law or this constitution.” Vt. Const. (1777) ch. II, § 18 (emphasis added). The
emphasized language is virtually identical in the 1786 and 1793 Constitutions. Vt.
Const. (1786) ch. II, § 9; Vt. Const. (1793) ch. II, § 11.
Thus, long before the Senate even existed to have any power to advise and consent,
the Governor and the Council’s principal appointment authority (framed as the powers to
commissionate and appoint) was subject to any laws that controlled that process, and
“until” any such legal process could unfold, they had a subordinate power and duty to
“supply every vacancy,” to appoint provisional officers pending the statutory process. 5
This provision thus appears to contemplate two types of officers: those who hold office
following the successful statutory appointment process, and those who the Governor
appoints to hold office on a temporary basis until that process concludes. Both types—
permanent and temporary—are necessary so that the Governor can fulfill the apparent
constitutional mandate to avoid enduring vacancies.
In 1836, the Council of Censors did away with the Executive Council and created
our bicameral General Assembly that includes a Senate. See Journal of the Council of
Censors at their Sessions at Montpelier and Middlebury in 1834 and 1835 at 58–64. The
Executive Council was deleted from the Constitution and the appointments clause in
particular, which otherwise continues to include nearly identical language dating to
1777. Vt. Const. ch. II, § 20. At some point thereafter, appointments of agency
secretaries were made subject to the Senate’s advice and consent by statute.
The current appointments clause continues to subject the Governor’s
appointments to applicable provisions of law, which now include the Senate’s advice and
consent, and the Governor continues to retain the separate power to make interim
appointments, of necessity without the Senate’s advice and consent, until the statutory
process results in a filled vacancy.
With that constitutional backdrop, the regime at 3 V.S.A. §§ 256–257 comes into
focus. Section 256(b) squarely says, “Notwithstanding any other provision of law, all
secretaries of State agencies and all commissioners of State departments shall take office
only with the advice and consent of the Senate except in the case of an appointment to fill
a vacancy when the General Assembly is not in session in which case the appointee may
5
The Senators treat all appointment power in Vt. Const. ch. II, § 20 as subject to statutory procedures without any detailed
analysis of the constitutional language. In particular, they offer no explanation as to what “shall supply every vacancy . . .
until” might be referring if not to an independent power to appoint not subject to the regular statutory procedures but to be
implemented in advance of them.
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take office subject to the provisions of section 257 of this title.” Section 257(b) then says,
“When a vacancy occurs in an office requiring appointment with the advice and consent
of the Senate, an appointment may be made to fill the vacancy. If the appointment to fill
the vacancy is made during any adjournment of the General Assembly the person
appointed may validly function in that office during adjournment until the Senate
convenes at the next regular, adjourned, or special session and acts upon the
appointment submitted forthwith by the Governor; or if the appointment to fill the
vacancy is made during any session of the General Assembly, the person appointed may
validly function in that office until the Senate shall act upon the appointment submitted
forthwith by the Governor. Thereafter the appointee shall continue in office if the Senate
consents to the appointment.”
Viewed through the constitutional distinction between appointments made
pursuant to the statutory process and those vacancies “supplied . . . until” that process
successfully concludes, the references in these statutes to secretaries or “all secretaries”
is ambiguous insofar as one might interpret the expression to include or exclude interim
appointments. But if these statutes are interpreted to extend to interim appointments
such as Ms. Saunders’, then there is no practical way to avoid ensuring vacancies in the
highest positions of leadership in agencies are filled pending the statutory process, and
there is no alternative statutory process regulating the Governor’s temporary
appointment authority.
In this case, the Governor’s ability to make any appointment initially was subject
to receipt of the State Board of Education’s approval of no fewer than three candidates,
and there is no statutory limit on how long the Board can take to approve candidates. If
the Senators’ interpretation of §§ 256–257 were correct, the Agency would necessarily
have to operate without any Secretary at the helm as long as it took for the Board to
approve candidates and the Governor to choose one. Even if the process did not depend
on this determination by the Board, any agency can experience a secretarial vacancy at
any time. It is unreasonable to expect that any governor, surprised by a secretarial
vacancy, could instantly make such a weighty decision as to who to appoint as a
successor without due diligence and contemplation.
By referring to “all secretaries,” §§ 256–257 thus appear to be referring exclusively
to all regularly appointed permanent secretaries, not interim appointments made under
the Governor’s subsidiary power to “supply every vacancy . . . until” the permanent
secretary is in office. See State v. Hurley, 2015 VT 46, ¶ 16, 198 Vt. 552 (2015) (“We
generally construe statutes ‘to avoid constitutional difficulties, if possible.’”) (citation
omitted)).
The parties skirmish over what the statutory term “forthwith” means in 3 V.S.A.
§§ 256–257. The Senators appear to argue that it means that any time there is any kind
of secretarial appointment that the Governor must immediately submit the name of the
appointee to the Senate for advice and consent even if, as here, it is a temporary
appointment. The Governor argues that “forthwith” was intended to give the Governor
flexibility as to when to send a name to the Senate for advice and consent. As the court
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concludes that §§ 256–257 does not address the appointment power exercised in this
case, the court declines to resolve this dispute.
The Senators argue that the court’s interpretation of Vt. Const. ch. II, § 20 and 3
V.S.A. §§ 256–257 raises the specter of a governor serially nominating the same secretary
candidate that the Senate keeps voting down, appointing that candidate on an interim
basis between Senate votes, as a way of intentionally defeating the Senators’ duty to
advise and consent. The example describes a bad faith course of conduct in which a
governor intentionally abuses the subsidiary authority to make interim appointments in
Vt. Const. ch. II, § 20.
There is no evidence of that in this case and thus there is no reason to dwell on
how such a situation might be resolved if it ever arises in the future. On April 15, 2024,
with the legislature in session, the Governor appointed Ms. Saunders. On April 30, the
Senate voted the nomination down. In response, the Governor appointed Ms. Saunders
on an interim basis until February 28, 2025, or until a “successor is appointed and has
qualified.” The session ended on May 10. A 1-day veto session was held on June 17. The
next legislative session will begin on the “first Wednesday next after the first Monday in
January.” Vt. Const. ch. II, § 7. Assuming the Governor’s good faith, the appearance is
that the interim appointment of Ms. Saunders is not intended to be indefinite in some
manner usurping the Senate’s advice and consent authority but is timed so that the
matter of an appointment of a permanent secretary can be presented to the Senate again
in the next legislative session. The vast majority of the temporary appointment of Ms.
Saunders so far as can be determined at this time will have been while the legislature is
out of session.
As the Governor points out, he is not the first to exercise the interim appointment
authority under Vt. Const. ch. II, § 20. The back-and-forth between the legislative and
executive branches has tolerated such appointments numerous times without provoking
lawsuits or legislation attempting to regulate the matter.
To the extent that the Senators argue that the Senate’s decision to not confirm Ms.
Saunders prevents the Governor from reappointing her, whether on an interim or
permanent basis, the court disagrees. There is no statute that so provides. When the
legislature has wanted to so limit the Governor’s appointment power, it has simply said
so. See, e.g., 18 V.S.A. § 9374(a)(2) (“The Governor shall not appoint a nominee [to the
Green Mountain Care Board] who was denied confirmation by the Senate within the past
six years.”). There is no such limitation regarding the office of the Secretary of
Education.
Order
For the foregoing reasons, the Governor’s motion to dismiss is granted, and the
Senators’ complaint is dismissed on the merits.
SO ORDERED this 27th day of September, 2024.
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_____________________
Robert A. Mello
Superior Judge
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