A superior court judge dismissed a lawsuit Friday brought by two state senators over the appointment of Interim Education Secretary Zoie Saunders.
Saunders鈥� lengthy tenure at a private charter school company alarmed many in Vermont鈥檚 public education system, and the Vermont Senate rejected Saunders' appointment to the role in April by a vote of 19-9. Immediately after, Gov. Phil Scott reappointed her to the role in an interim capacity.
Lawmakers took no further action during the session, but after the Legislature adjourned this summer, state Sens. Tanya Vyhovsky, a Progressive/Democrat, and Richard McCormack, a Democrat, who had opposed Saunders鈥� appointment, filed suit. They argued that by reappointing Saunders, Scott had wrongfully circumvented the Senate鈥檚 constitutional and statutory authority to confirm 鈥� or reject 鈥� gubernatorial appointees.
In a motion seeking dismissal, lawyers for the state argued that the senators had no standing to bring their suit, that the suit was politically motivated, and that Scott did indeed have the authority to make such interim appointments, without the Senate鈥檚 advice and consent.
Washington County Superior Court Judge Robert Mello disagreed that the senators had no standing, or that their suit did not raise legitimate constitutional questions. But on the substance of the case, he ruled in Scott's favor.
In his nine-page decision, Mello wrote that there is 鈥渘o constitutional provision subjecting the Governor鈥檚 appointment of agency secretaries to the advice and consent of the Senate (or anyone else).鈥� Instead, Mello notes, the constitution states that the governor, 鈥渟hall 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 government.鈥�
John Franco, an attorney who represents Vyhovsky and McCormack, said that if this decision stands, the Senate's responsibility to confirm or reject gubernatorial appointments is 鈥渢otally meaningless.鈥�
鈥淥ur argument is a very basic one. If that's the name of the game, then there's no such thing as advice and consent of the Senate, because the only thing the Senate can do is approve appointments,鈥� he said. 鈥淚f they don't approve appointments, it doesn't matter, because the governor could bypass them anyway.鈥�
But in his decision, Mello noted that the Legislature does have the power to pass laws which curtail a governor鈥檚 discretion in making appointments, interim or otherwise 鈥� which the Legislature did not do in this case. According to Vermont law, for example, a governor cannot appoint someone to the Green Mountain Care Board if they have been denied confirmation by the Senate in the last six years.
鈥淲hen the legislature has wanted to so limit the Governor鈥檚 appointment power, it has simply said so,鈥� Mello wrote.
Franco said his clients have not yet decided whether to appeal the decision to the Supreme Court.
鈥淲e'll sleep on it and make a decision shortly about what we're going to do,鈥� he said.
Have questions, comments or tips? .
