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Turner v. Shumlin

Supreme Court of Vermont

January 4, 2017

Representative Donald Turner, Jr. and Senator Joseph Benning
Governor Peter Shumlin

         Original Jurisdiction

          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.

          Daniel P. Richardson and Stephen F. Coteus of Tarrant, Gillies & Richardson, Montpelier, for Amicus Curiae Senator Richard Sears.

          PRESENT: Reiber, C.J., Dooley, Skoglund and Eaton, JJ., and Morris, Supr. J. (Ret.), Specially Assigned

          PER CURIAM.

         ¶ 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.[1]

         I. 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[2] 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 3, 2017.

         ¶ 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.

         II. 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. Supreme Court:

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 favorable decision.

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 ...

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