Judge signals quick decision in education secretary lawsuit, with Vermont Supreme Court likely to weigh in
By Ethan Weinstein,
23 days ago
Tanya Vyhovsky, left, Zoie Saunders. Photos by Glenn Russell/VTDigger
The judge considering a lawsuit over the governor’s reappointment of Interim Education Secretary Zoie Saunders signaled a decision could arrive as soon as today.
The lawmakers have argued that the governor cannot reappoint a secretary in an interim capacity after the Senate has already rejected that appointment in the same biennium. The executive branch said the governor is well within his authority to do so, and that the lawmakers do not have standing to bring a case at all, calling the questions at hand “political.”
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In a remote hearing held from Vermont Superior Court Washington civil division on Thursday, both sides presented their arguments to Judge Robert Mello, who acknowledged the time-sensitive nature of the case.
“The court recognizes that this is a very important case. The court also recognizes that there is a need for a prompt decision,” Mello said, “because there’s a claim being made here that Ms.Saunders is not legitimately the (secretary) and therefore has no jurisdiction to be issuing orders.”
Mello had both parties agree that a decision on the case could be made “today” or in the “next few days.”
“My goal is to get the legal question to the Supreme Court as soon as I can,” he said.
David Golubock, an assistant attorney general representing the governor and Saunders, argued that Vermont’s appointment system has worked without issue for decades and was working as designed in this instance.
“This dispute isn’t really a dispute about the function of law or the Constitution,” he said. “It’s a political dispute about Secretary Saunders individually.”
In some instances, like with the Green Mountain Care Board, the governor by law cannot reappoint a person already rejected by the Senate, Golubock said, but there’s “no statute prohibiting” the same thing from happening with an Vermont Agency of Education secretary.
Representing the senators, attorney John Franco said the issue had to do with the checks and balances between the executive and legislative branches. Reappointing a person rejected by the Senate is a “loophole” that’s been abused by previous governors as well, according to Franco.
“This is a bipartisan abuse of the advice and consent of the Senate. It’s been done by both Democratic and Republican governors,” he said. “It should not be the function of the court to carve a loophole that you could drive an aircraft carrier through.”
If a governor can keep reappointing a rejected secretary, it creates a “Groundhog Day problem,” Franco said. “You have no practical ability of the Senate to not confirm an appointment.”
Regardless of Judge Mello’s decision in the case, the matter is expected to reach the Vermont Supreme Court. In the meantime, Saunders continues to serve as interim secretary, engaging in a “listen and learn” tour.
Disclosure: Jared Carter, an attorney for the senators, is providing pro bono legal assistance to VTDigger in an unrelated public records case.
Maybe after the filing of this lawsuit and the multi overrides of his vetos, Governor Scott will finally smarten up. Progressives, Democrats, Liberals and Socialists are not your friends. They want what they want—and will run you over to get it. No compromise, no bipartisanship, no middle ground. It has to be their way or nothing. The only way to get around them is at the ballot box. They must be removed from power.
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