Criminal Defendants Lose Bid To Oust Appointed State’s Attorney

The Vermont Superior Court dismissed a petition challenging the authority of the Governor to appoint a state’s attorney. 

The incumbent was appointed as a judge shortly before the election which she nonetheless won 

After the election, Judge Barrett promptly notified the Vermont Secretary of State on November 10, 2022 that she again declined the office and would not serve due to her position as a Vermont Superior Court Judge. Def’s Ex. A. This was more than a theoretical statement or a conceit subject to whim, mood, or fancy. The Vermont Code of Judicial Conduct governs, among others, all superior court judges in the state. The Rules under the Code do not allow judges to continue practicing law and serving in official functions outside of a few limited exceptions. Specifically, Rule 3.10 of the Vermont Code of Judicial Conduct states that “A judge shall not practice law.” Rule 3.4 states that “A judge shall not accept appointment to a governmental committee, board, commission, or other governmental position . . . “ Together with Rule 4.1, which bars judges from engaging in political caucuses, meetings, elections, or standing as a candidate while holding judicial office, these rules effectively and practically barred Judge Barrett from engaging in the Office of State’s Attorney from the moment that she was sworn-into her judicial position.

As a consequence

Judge Barrett’s appointment to the bench left the position of Orleans County State’s Attorney vacant, and Barrett’s deputy, Attorney Farzana Leyva, became interim State’s Attorney for Orleans County.

After the Governor appointed Leyva

Plaintiffs filed their initial Complaint on January 26, 2023. Plaintiffs at that time were identified as “All Clients of Sleigh Law, P.C., with Prosecutions Pending before the Criminal Division of the Orleans Superior Court.” The Complaint also included a motion for a permanent injunction against Attorney Leyva’s or any other person’s appointment to the Office of State’s Attorney. Plaintiffs argued that Governor Scott did not have the authority to appoint a State’s Attorney and that Orleans County must hold a special election to elect a new State’s Attorney.

The court

Based on the facts and analysis above, the Court concludes that Governor Scott properly appointed Attorney Leyva as Orleans County State’s Attorney to fill a vacancy created when Judge Barrett took office as a Vermont Superior Court Judge, resigned and disclaimed any right she had to take office after the outcome of the November 2022 general election. Plaintiffs have failed to state a claim upon which relief can be granted. Although courts are extremely hesitant to grant a motion to dismiss, it is appropriate here.

The Vermont Constitution is clear that a governor can appoint a state’s attorney when a vacancy arises.

(Mike Frisch)