Judge dismisses lawsuit against Gov. Scott over secretary of education appointment

A judge on Friday dismissed the lawsuit two senators filed in June against Gov. Phil Scott over his appointment of interim Secretary of Education Zoie Saunders. The lawsuit also named Saunders as a defendant.

In the lawsuit, state Sens. Tanya Vyhovsky and Richard McCormack argued that Scott violated the Vermont Constitution when he selected Saunders to fill the interim role after the Senate voted 19-9 against her permanent appointment. Vermont governors must obtain the Senate’s “advice and consent” prior to filling a secretary of state agency’s seat, the senators said.

A month later, the Vermont Attorney General’s Office requested the lawsuit be dismissed, primarily arguing that Scott does have the constitutional authority to appoint interim cabinet positions even after rejection from the Senate, and that he is following precedent set by previous governors. The Attorney General’s Office also contended that the senators’ claim was not “ripe” and they lacked standing and were raising a political question.

Vermont Superior Court Judge Robert A. Mello agreed with the Attorney General’s Office that Scott’s actions were lawful and based on precedent, but disagreed that the senators lacked standing, ripeness or presented a “nonjusticiable political question.”

“To extent that the Senators argue that the Senate’s decision not to confirm Ms. Saunders prevents the Governor from reappointing her, whether on an interim or permanent basis, the court disagrees,” Mellow wrote in his Sept. 27 ruling. “There is no statute that so provides.”

“When the legislature has wanted to so limit the Governor’s appointment power, it has simply said so,” Mellow added, referencing the statute that prohibits governors from appointing a nominee to the Green Mountain Care Board whom the Senate has failed to confirm within the past six years.

Mello’s decision comes just a day after the judge heard oral arguments from both sides.

Saunders’ term as interim secretary of education ends Feb. 28 next year.

Megan Stewart is a government accountability reporter for the Burlington Free Press. Contact her at mstewartyounger@gannett.com.