On Appeal from Superior Court, Orleans Unit, Criminal Division, Howard E. Van Benthuysen, J.
William H. Sorrell, Attorney General, and John Treadwell, Assistant Attorney General, Montpelier, for Plaintiff- Appellee.
David C. Sleigh and Kyle L. Hatt of Sleigh Law, St. Johnsbury, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund and Burgess, JJ., and Toor, Supr. J., Specially Assigned.
¶ 1. Defendant appeals an order of the Superior Court, Orleans Unit, Criminal Division, denying his motion to dismiss a two-count information alleging kidnapping and aggravated domestic assault. Defendant contends that the Orleans County State’s Attorney who filed the information, Alan Franklin, was invalidly appointed, and that his prosecutions are therefore unlawful and violate due process. The trial court disagreed, concluding the appointment was consistent with the Vermont Constitution and statute; and that, even if the appointment was infirm, the de facto officer doctrine validated Mr. Franklin’s authority to prosecute. We conclude that Mr. Franklin was acting as a de facto officer and affirm.
¶ 2. The parties agreed to the following facts for purposes of defendant’s motion to dismiss. On November 7, 2006, Keith Flynn was elected to the office of Orleans County State’s Attorney for a term commencing February 1, 2007 and ending January 31, 2011. On November 2, 2010, Mr. Flynn was reelected as State’s Attorney for Orleans County. His second term was to commence February 1, 2011 and end January 31, 2015. During the same election, Peter Shumlin was elected Governor, and, as Governor-elect, named Mr. Flynn as his choice for Public Safety Commissioner. On December 27, 2010, Flynn submitted his letter of resignation from the Office of State’s Attorney to Governor-elect Shumlin:
effective January 6, 2011 at midnight, to become the Vermont Commissioner of Public Safety, as follows: first, for the remainder of my present term that expires on January 31, 2011 at midnight; and then, for the term to which I was recently elected that commences on February 1, 2011.
On January 6, 2011, Governor-elect Shumlin took the oath of office as Governor. The same day, Mr. Flynn wrote a letter to Mr. Franklin, then Orleans County Deputy State’s Attorney:
My resignation as the Orleans County State’s Attorney, to become the Vermont Commissioner of Public Safety, is effective January 6, 2011 at midnight in accordance with my letter to Governor Peter Shumlin. As the senior Deputy State’s Attorney in the office, I hereby designate you to act in my capacity as Acting State’s Attorney pursuant to the terms of 24 V.S.A. § 363 in that you are authorized to “... exercise all the powers and duties of the state’s attorney except the power to designate someone to act in the event of [your] own disqualification.” This designation will remain in place until the appointment of a State’s Attorney for Orleans County by action of Governor Peter Shumlin.
All appointments of Deputy State’s Attorneys continue in full force and effect until the Governor appoints a new Orleans County State’s Attorney. “In case of a vacancy in the office of state’s attorney, the appointment of the deputy shall expire upon the appointment of a new state’s attorney.” 24 V.S.A. § 363. It is my intention that all other staff appointments be continued until the appointment of my replacement by Governor Shumlin.
¶ 3. By letter dated January 21, 2011, Governor Shumlin appointed Mr. Franklin “to serve the remaining 10 days of Keith Flynn’s current term as Orleans County State’s Attorney, as well as for the four-year term beginning February 1, 2011.” That same day, Mr. Franklin took the oath of office for the remaining ten days of the 2007 term. Mr. Franklin then took the oath of office on February 1, 2011 for the current term from February 1, 2011 to January 31, 2015.
¶ 4. Mr. Franklin began carrying out the duties of State’s Attorney, and, in that capacity, on August 20, 2012, filed an information against defendant. On October 12, 2012, defendant, along with others charged by Mr. Franklin, filed a consolidated motion to dismiss their respective cases. They argued that Mr. Franklin was not a duly authorized State’s Attorney because the Governor lacked the authority to appoint Mr. Franklin for the current term commencing February 1, 2011. As noted earlier, the trial court denied the motion to dismiss. The court also denied the consolidated defendants’ request for permission to appeal, and defendant sought permission from this Court. This Court granted leave to take an interlocutory appeal solely as to defendant Cuomo.
¶ 5. Defendant maintains on appeal that State’s Attorney Franklin is not a duly authorized officer because the Governor lacked the authority to fill the vacancy for the 2011 term. Defendant argues that the Governor’s authority is limited to filling a vacancy for the remaining portion of a term and that a special election was the only proper process for filling a vacancy for a term that had not yet begun when the vacancy was created. Because of the alleged infirmity in Mr. Franklin’s appointment, defendant argues that Mr. Franklin’s prosecutions are unlawful and violate due process. Furthermore, defendant asserts that the de facto ...