Superseded Interim Appointments and the Constitutional Check on Executive Power: A Vermont Precedent

Introduction

In the case of Richard McCormack & Tanya Vyhovsky v. Phil Scott & Zoie Saunders (2025 Vt. 7), the Vermont Supreme Court addressed a challenge brought by two state senators regarding the Governor’s authority to make interim appointments to fill a vacancy in the office of Secretary of Education. The controversy focused on whether Governor Phil Scott, by appointing Zoie Saunders on an “interim, temporary basis” without first receiving the Vermont Senate’s advice and consent, had exceeded his authority. The appellants contended that the statutory framework contained in 3 V.S.A. §§ 256 and 257 did not authorize such appointments and that this action effectively bypassed the Senate’s constitutional role. Central to the dispute were questions regarding the independent constitutional appointment power conferred on the Governor (Chapter II, § 20 of the Vermont Constitution) and the proper application of statutory procedures for recess and interim appointments.

Summary of the Judgment

The Vermont Supreme Court ultimately dismissed the appeal and cross-appeal as moot. The Court noted that subsequent events – specifically, the Governor’s reappointment of Ms. Saunders in November 2024 in compliance with the recess appointment provisions under 3 V.S.A. § 257(b) – had supplanted the previously contested interim appointment. The court observed that once the Legislature reconvened and the Governor submitted the nomination to the Senate, the controversy regarding the April 30, 2024 appointment was eliminated. While the senators argued that the Governor’s authority over interim appointments was unambiguously limited by statutory requirements, the trial court had concluded, and the Supreme Court followed, that the constitutional power of the Governor to “supply every vacancy” was not in conflict with the timing or form of the interim action.

Analysis

Precedents Cited

The Judgment made reference to several precedents to support its conclusions. Notably:

Turner v. Shumlin (2017 VT 2): Although discussed by the Governor in his cross-appeal, the Court found this case to be distinguishable from the present matter due to the subsequent changes and events that rendered the controversy moot.
STATE v. OREN (1993): This case was cited in relation to the de facto officer doctrine. The Court underscored that while the doctrine ensures that acts performed under an appearance of lawful appointment are binding on third parties, it does not authorize improperly made appointments.
Fancher v. Stearns (1889) and other historical references: These cases illustrate the longstanding judicial understanding that appointment authority, even when questioned, has practical implications for administrative continuity.
Paige v. State (2017 VT 54): This precedent was instrumental in framing the mootness standard – that an actual controversy must exist for judicial review, and a case becomes moot if subsequent events remove the live controversy.

The cited precedents helped frame the scope of judicial review, particularly in relation to the constitutional exercise of executive appointment authority and the analysis of mootness.

Legal Reasoning

The Court’s legal reasoning centered on the interpretation of the Governor’s appointment power as set out in Chapter II, § 20 of the Vermont Constitution. Key points in the reasoning include:

Constitutional Authority Over Appointments: The Court emphasized that the Governor’s power to commission officers and to “supply every vacancy” is an independent constitutional power. This authority predated and existed in tension with the statutory requirements imposed on permanent, regularly appointed secretaries.
Statutory Framework for Interim Appointments: The language in 3 V.S.A. §§ 256 and 257 specifically addresses appointments made during legislative recess sessions, allowing interim appointments provided that the Senate later provides its advice and consent. The Court found that the Governor’s actions, in a later appointment and pursuant to the statutory process, led to a valid result.
Mootness and Changing Circumstances: A critical element of the Court’s reasoning was that by the time the appeals were considered, the controversy had been alleviated by the Governor’s November 2024 appointment and the subsequent legislative process. As such, issues pertaining to the validity of the earlier April 30, 2024 appointment were rendered non-justiciable.

Overall, the Court delicately balanced constitutional appointment powers against statutory mandates, while emphasizing that the real-world process for filling a vacancy had been adhered to once events transpired.

Impact on Future Cases and the Relevant Area of Law

Although the case was dismissed as moot, this judgment has significant implications:

Clarification of Appointment Authority: The decision reinforces the principle that interim appointment powers under the Vermont Constitution operate independently and may be exercised during legislative recesses, so long as the statutory protocol is subsequently followed.
Guidance on Mootness Doctrine: The ruling reaffirms that when subsequent events resolve a legitimate controversy, the judiciary is not required to offer advisory opinions on hypotheticals, setting a clear standard for analyzing standing and ripeness.
Checks and Balances Emphasis: Reinforcing the separation of powers, the judgment reaffirms that while the executive may exercise appointment power, its authority is subject to constitutional limits and legislative oversight following proper procedural steps.
Future Appointment Disputes: Future disputes involving interim appointments will likely be shaped by the Court’s insistence on the importance of following statutory procedures. This ensures that any departure from standard processes—especially those bypassing the Senate’s role—will be closely scrutinized.

Complex Concepts Simplified

The Judgment involves several complex legal concepts:

Interim Appointments: These are temporary appointments made to fill a vacancy until a permanent candidate can be confirmed. Here, the Governor used his constitutional power to make such an appointment during a legislative recess.
Advice and Consent Requirement: Normally, executive appointments to key positions require the Senate’s approval. In this case, the statutory process allowed for interim functioning during recess, subject to later Senate review.
Mootness: A case is moot if there is no longer an ongoing controversy that affects the parties’ legal rights. Because the Governor’s November appointment superseded the initial contention, the issue was deemed no longer live.
De Facto Officer Doctrine: This principle allows actions taken by a person who appears to have lawful authority to be upheld, even if the appointment process has imperfections. However, the doctrine does not serve as a shield for actions taken outside statutory authority.

Conclusion

The Vermont Supreme Court’s ruling in this case robustly underlines the constitutional power of the Governor to make interim appointments under Chapter II, § 20 while also clarifying that statutory requirements found in 3 V.S.A. §§ 256 and 257 do not extend to such appointments made during legislative recesses. By dismissing the appeal as moot, the Court avoided issuing an advisory opinion on the merits of the interim appointment timing. The decision has broader implications for the separation of powers in Vermont, ensuring that executive appointment authority is exercised within constitutional bounds and subject to subsequent legislative oversight. Ultimately, this precedent serves to reassure that when constitutional and statutory frameworks interact, the processes designed to maintain checks and balances will prevail.

This Commentary underscores the importance of understanding the interplay between constitutional authority and statutory prescriptions in the appointment process. It also highlights the judicial principle of mootness as a safeguard against rendering opinions on hypothetical disputes once actual controversies have been resolved.