Judge: ruling soon on prosecutor challenge
THE ASSOCIATED PRESS | November 12,2012
NEWPORT — A Vermont Superior Court judge is promising to decide within 10 days if he will dismiss charges in 20 criminal cases because of what a defense attorney feels was the improper appointment of the Orleans County state’s attorney.
Judge Howard VanBenthuysen heard arguments Wednesday from attorney David Sleigh, who filed the motion to dismiss the charges because of the way in which State’s Attorney Alan Franklin was appointed, and Assistant Attorney General John Treadwell.
Sleigh claims Gov. Peter Shumlin didn’t have the authority to appoint State’s Attorney Alan Franklin to replace former State’s Attorney Keith Flynn. Flynn was elected in 2010, but before taking the oath of office for the new term, Shumlin appointed him commissioner of the Department of Public Safety.
Flynn resigned during his term and Franklin took the oath to replace him on Jan. 21, 2011. On Feb. 1, Franklin was sworn in to a full term without being elected.
In court papers Sleigh said state law would have allowed the governor to order a special election upon Flynn’s resignation. In the interim, the attorney general had the authority to appoint a special assistant attorney general to manage prosecutions in the county, Sleigh wrote in a supplemental memorandum.
“This dual-faceted option was and still is the only lawful way to handle the opening in the full-term for Orleans State’s Attorney,” he wrote.
Treadwell said Franklin was properly appointed and no special election is necessary.
“Quite simply, while the defendants may wish the Governor had held a special election, he had no authority to do so,” Treadwell said.
Treadwell wrote that there is no mechanism besides appointment for filling the state’s attorney position when the winner of the election resigns prior to the four-year term’s start.
One of the cases Sleigh is seeking to dismiss is that against Roger Pion, a Newport man charged with driving a giant farm tractor over seven sheriff’s department cruisers.
The Caledonian Record said Van Benthuysen’s decision is expected to be filed by Nov. 17.