Judge dismisses senators’ lawsuit over education secretary’s interim appointment

Updated at 4:53 p.m.

A judge on Friday dismissed a lawsuit brought by two Vermont state senators over Gov. Phil Scott’s appointment of Zoie Saunders as interim education secretary.

The ruling came a day after Judge Robert Mello heard from both sides in Washington County superior court and signaled he would issue a speedy decision. Mello and the parties indicated Thursday the case could wind up appealed to the Vermont Supreme Court.

“To the extent that the Senators argue that the Senate’s decision to not confirm Ms. Saunders prevents the Governor from reappointing her, whether on an interim or permanent basis, the court disagrees,” Mello wrote in his 10-page order.

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“When the legislature has wanted to so limit the Governor’s appointment power, it has simply said so,” he added, referencing legislation that prevents the governor from immediately reappointing someone to the Green Mountain Care Board after they’ve been rejected by the Senate.

An attorney representing the senators said Friday they have yet to decide if they will appeal the decision.

Sens. Tanya Vyhovsky, P/D-Chittenden Central, and Dick McCormack, D-Windsor, sued Scott and Saunders in June over the governor’s decision to reappoint the education secretary immediately after the Vermont Senate voted 19-9 not to confirm Saunders .

The lawmakers argued 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 argued 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.”

Mello ultimately ruled the senators did have standing to bring the case, but sided with the governor on the case’s merits.

“Ms. Saunders is not intended to be indefinite in some manner usurping the Senate’s advice and consent authority,” Mello said. Instead, Saunders is serving in the role until “a permanent secretary can be presented to the Senate again in the next legislative session,” he determined.

Saunders’ interim term lasts until the end of February 2025, and she can be reappointed on a permanent or interim basis.

The judge grounded his decision in the centuries-long history of Vermont politics, noting the governor’s state constitutional powers predate the existence of a Vermont Senate.

Mello determined that interim appointments are “of necessity” made without the Senate’s approval.

“It is unreasonable to expect that any governor, surprised by a secretarial vacancy, could instantly make such a weighty decision as to who to appoint as a successor without due diligence and contemplation,” the judge wrote.

While Mello acknowledged a governor could act in “bad faith” by repeatedly appointing someone in an interim capacity, he said there was “no evidence of that in this case.”

In an interview, John Franco, an attorney representing the senators, said he appreciated the depth of Mello’s written ruling.

“This was not something on the back of an envelope,” he said.

Still, Franco disagreed with the judge’s interpretation.

“If this is the case, then the advice and consent of the Senate is an illusion,” he said.

As for a possible appeal, Franco wouldn’t commit one way or the other.

“That decision will be made shortly,” he said, “but not today.”

A spokesperson for Gov. Scott did not respond to a request for comment Friday afternoon.

Disclosure: Jared Carter, an attorney for the senators, is providing pro bono legal assistance to VTDigger in an unrelated public records case.

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