Suit Challenging Ed Secretary Saunders' Appointment Dismissed 

In July, the Vermont Attorney General’s Office filed a motion to dismiss the case. During a hearing on that motion on Thursday, assistant attorney general David Golubock argued that the governor acted within his authority. As a point of contrast, he noted that the statute that governs the appointment of members of the Green Mountain Care Board explicitly states that the governor cannot reappoint a nominee who has been denied confirmation by the Senate within the past six years.

In his ruling, Superior Court Judge Robert Mello agreed with the Attorney General's Office.

"There is no constitutional provision subjecting the Governor's appointment of agency secretaries to the advice and consent of the Senate (or anyone else)," Mello wrote. Instead, the Vermont Constitution says the governor "shall apply every vacancy in any office, occasioned by death or otherwise, until the office can be filled in a manner directed by law or this Constitution."

Mello rejected the argument made by John Franco, a lawyer representing Vyhovsky and McCormack, that statutory language effectively barred a rejected appointee from serving in the role they were rejected from, even on an interim basis. Mello interpreted the statute Franco cited as referring "exclusively to regularly appointed permanent secretaries, not interim appointments."

Mello didn't agree with the attorney general's office on all points. On Thursday, Golubock characterized the debate about Saunders’ appointment as a “political dispute," best left to the executive and legislative branches to work out, not an issue that should be resolved in court.

But in his decision, Mello wrote that the senators' claim was ripe for adjudication and that they had standing to bring their case.

Quoting a decision from a related lawsuit, Turner v. Shumlin, Mello wrote: "Not every gubernatorial action is a political question immune from judicial scrutiny, whether it comports with the Constitution."

Lawyers for both sides signaled on Friday that the case may be heading to the Vermont Supreme Court.

“We are pleased with the Court’s ruling," Attorney General Charity Clark said in a statement. "Due to the possibility of an appeal, we don’t have much else to say at this time and are continuing to review the ruling.”

Franco said that his side was "obviously disappointed" and didn't agree with the judge's ruling. He said that Vyhovsky and McCormack would be making a decision about whether to appeal, but would need to "sleep on it."

Read the ruling here: