Representative Donald Turner, Jr. and Senator Joseph Benning
Governor Peter Shumlin
Deborah T. Bucknam of Bucknam & Black, and Janssen
Willhoit, St. Johnsbury, for Petitioners.
William H. Sorrell, Attorney General, William E. Griffin,
Chief Assistant Attorney General, and Benjamin D. Battles,
Assistant Attorney General, Montpelier, for Respondent.
P. Richardson and Stephen F. Coteus of Tarrant, Gillies &
Richardson, Montpelier, for Amicus Curiae Senator Richard
PRESENT: Reiber, C.J., Dooley, Skoglund and Eaton, JJ., and
Morris, Supr. J. (Ret.), Specially Assigned
1. Petitioners, Representative Donald Turner, Jr. and Senator
Joseph Benning, seek to enjoin respondent, Governor Peter
Shumlin, whose last day in office is January 5, 2017, from
appointing a successor to the office held by Associate
Justice John Dooley, whose current term expires on April 1,
2017. For the reasons stated below, we conclude that
petitioner Senator Benning has standing to bring this action
and that respondent does not have the authority to appoint
Justice Dooley's successor.
Facts and Procedural History
2. The parties have agreed to the following facts. Associate
Justice John Dooley was appointed to a six-year term as a
justice of this Court on June 12, 1987. The General Assembly
voted to retain Justice Dooley for additional six-year terms
in 1993, 1999, 2005, and 2011. Justice Dooley did not file a
declaration with the Office of the Secretary of State before
September 1, 2016 indicating that he would seek retention for
another term beyond March 31, 2017, the last day of his
current six-year term. See 4 V.S.A. § 4(c) ("A
supreme court justice may file in the office of the secretary
of state, on or before September 1 of the year preceding the
expiration of the term for which he or she was appointed or
retained, a declaration that he or she will be a candidate
for retention."). He will remain in his office as an
associate justice of the Court until April 1, 2017.
3. Respondent was elected as Governor in 2010, 2012, and
2014. He did not seek reelection in the fall of 2016 for
another term as Governor. Phil Scott won the election in
November 2016 and will be sworn in as the new Governor on the
afternoon of January 5, 2017. The Vermont Legislature will
commence its next biennium on January 4, 2017.
4. Following Justice Dooley's decision not to seek
retention for another term, respondent announced his
intention to appoint Justice Dooley's successor. The
Judicial Nominating Board began its selection process. On
December 16, 2016, after completing its review of applicants,
the Board transmitted to the Governor a list setting forth
the names of six candidates to replace Justice Dooley.
5. On December 21, 2016, petitioner Donald Turner, Jr., a
state representative and Minority Leader of the House of
Representatives, filed a petition for quo
warranto contesting respondent's authority to
appoint Justice Dooley's successor and asking this Court
to enjoin him from doing so. Petitioner Turner asserted that
although the Vermont Constitution authorizes the Governor to
fill a vacancy on the Court, no vacancy will exist until
Justice Dooley leaves office on April 1, 2017, nearly three
months after Governor Shumlin leaves the Office of Governor.
6. On December 23, 2016, the Office of the Attorney General
filed a notice of appearance on behalf of respondent. That
same day, this Court enjoined the Governor from appointing
Justice Dooley's successor until further order from this
Court, ordered the parties to file memoranda of law on or
before December 30, 2016, and scheduled a hearing for January
7. On December 27, 2016, Senator Joseph Benning, who is
Senate Minority Leader and Vice-Chair of the Senate Judiciary
Committee, filed a motion to intervene in the matter and join
the petition. The following day, this Court granted the
motion. Petitioners and respondent filed memoranda of law on
December 30, 2016. On that same day, Senator Richard Sears,
who is Chair of the Senate Judiciary Committee, submitted an
amicus curiae brief in support of respondent's position,
along with a motion for permission to file the brief. On
January 3, 2017, this Court granted Senator Sears's
motion and held a hearing on the petition.
Ripeness and Standing
8. Before addressing the merits of the petition, we first
consider whether the petition is ripe for resolution and
whether petitioners have standing to bring this action.
"Vermont courts are vested with subject matter
jurisdiction only over actual cases or controversies
involving litigants with adverse interests." Brod v.
Agency of Nat. Res., 2007 VT 87, ¶ 8, 182 Vt. 234,
936 A.2d 1286; see In re Constitutionality of House Bill
88, 115 Vt. 524, 529, 64 A.2d 169, 172 (1949) ("The
judicial power, as conferred by the Constitution of this
State upon this Court, is the same as that given to the
Federal Supreme Court by the United States Constitution; that
is, the right to determine actual controversies arising
between adverse litigants, duly instituted in courts of
proper jurisdiction." (quotation omitted)). Respondent
contends that the instant matter is not ripe for judicial
resolution because he has not yet nominated a replacement for
Justice Dooley and, even if he proceeds with his intent to
choose Justice Dooley's successor, there will be no
justiciable controversy unless and until the Senate confirms
the appointment. We disagree.
9. A claim is not constitutionally ripe if the claimed injury
is conjectural or hypothetical rather than actual or
imminent. Nat'l Org. for Marriage, Inc. v.
Walsh, 714 F.3d 682, 688-89 (2d Cir. 2013); see also
Skaskiw v. Vt. Agency of Agric., 2014 VT 133, ¶
31, 198 Vt. 187, 112 A.3d 1277 ("Claims are ripe when
there is a sufficiently concrete case or controversy, as
opposed to one that is abstract or hypothetical."
(quotation omitted)); N.Y. Civil Liberties Union
v. Grandeau, 528 F.3d 122, 130 n.8 (2d Cir. 2008)
("Standing and ripeness are closely related doctrines
that overlap most notably in the shared requirement that the
plaintiff's injury be imminent rather than conjectural or
hypothetical." (quotation omitted)). There is nothing
conjectural or hypothetical about either respondent's
challenged conduct or petitioners' claimed injury. The
Governor's pronouncement of his intent to fill a
"vacancy" on the Court by naming Justice
Dooley's successor is unequivocal, not conjectural or
hypothetical-indeed, he is herein vigorously maintaining his
right to do so. The agreed statement of facts provides that
the Governor is prepared to nominate one of the candidates.
Petitioners' claimed injury is that respondent's
constitutionally unauthorized appointment interferes with
their constitutionally provided legislative responsibilities
regarding judicial appointments. As discussed more fully
below, petitioners' legislative responsibilities in
dispositive part involve a fundamental interest in ensuring
that their votes are part of a sound constitutional process.
This claim is ripe.
10. We now turn, more specifically, to the question of
standing. "This Court has adopted the constitutional and
prudential components of the standing doctrine enunciated by
the United States Supreme Court." Schievella v.
Dep't of Taxes, 171 Vt. 591, 592, 765 A.2d 479, 481
(2000)(mem.). Standing, among other related doctrines, is
rooted in respect for the separation of powers and is aimed
at promoting judicial restraint by limiting judicial
intervention in a democratic society and in the political
process. Brady v. Dean, 173 Vt. 542, 543-44, 790
A.2d 428, 430-31 (2001)(mem.). The "gist of the question
of standing" is whether plaintiff's stake in the
outcome of the controversy is sufficient "to assure that
concrete adverseness which sharpens the presentation of
issues upon which the court so largely depends for
illumination of difficult constitutional questions."
Baker v. Carr, 369 U.S. 186, 204 (1962); see also
Ariz. State Legislature v. Az. Indep. Redistricting
Comm'n, 135 S.Ct. 2652, 2663, __ U.S. __, __ (2015)
(stating that "standing is one element of the
Constitution's case or controversy limitation on federal
judiciary authority, expressed in Article III of the
Constitution" (quotation omitted)).
11. To satisfy the threshold requirement of standing, a
plaintiff "must present a real- not merely
theoretical-controversy involving the threat of actual injury
to a protected legal interest rather than merely speculating
about the impact of some generalized grievance."
Brod, 2007 VT 87, ¶ 9 (quotations omitted). To
meet this burden, a plaintiff "must show (1) injury in
fact [in the form of an invasion of a legally protected
interest], (2) causation, and (3) redressability."
Id. (quotation omitted). As a federal district court
recently stated in summarizing the test set forth by the U.S.
The irreducible constitutional minimum of standing contains
three elements: (1) the plaintiff must have suffered an
injury in fact, i.e., an invasion of a legally protected
interest which is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical; (2)
there must be a causal connection between the injury and the
conduct complained of; and (3) it must be likely, as opposed
to merely speculative, that the injury will be redressed by a
Rossito-Canty v. Cuomo, 86 F.Supp.3d 175, 198
(E.D.N.Y. 2015) (quotations omitted). In considering whether
a particular plaintiff has satisfied these elements and thus
is entitled to adjudication of the particular claims
asserted, a court must ask whether "the injury [is] too
abstract, or otherwise not appropriate, " to be
judicially cognizable, whether "the line of causation
between the illegal conduct and injury [is] too attenuated,
" and whether "the prospect of obtaining relief
from the injury as a result of a favorable ruling [is] too
speculative." Allen v. Wright, 468 U.S. 737,
752 (1984), abrogated ...