Lawyer appeals prosecutor challenge ruling
By WILSON RING
The Associated Press | November 17,2012
MONTPELIER — A judge refused to dismiss criminal charges against a man accused of driving over seven police cruisers with a giant farm tractor and almost 30 other criminal cases because of the manner in which the state’s attorney prosecuting the cases was appointed.
In his decision, Superior Court Judge Howard VanBenthuysen said the unusual circumstances that led to the appointment of Orleans County State’s Attorney Alan Franklin in 2011 were not covered by Vermont law.
“The court concludes that Mr. Franklin has, at the very least, been acting legitimately as an officer ‘de facto’ in the office of the Orleans County States Attorney,” said the ruling. “While there may be a void in existing election law, under the circumstances, the technical validity of his appointment is assured.”
The lawyer who filed the original complaint, David Sleigh, believes a special election should have been held when Franklin’s predecessor was appointed to a position in Gov. Peter Shumlin’s administration.
Sleigh immediately filed an appeal of VanBenthuysen’s ruling, continuing to argue the cases against his clients should be dismissed because of the way in which Franklin was appointed. Sleigh argued the judge should have ordered a special election, even if it took longer and was more complicated than a simple gubernatorial appointment.
“The court thus ignored a clear constitutional requirement for elected state’s attorneys except under circumstances enumerated by statute,” Sleigh wrote.
Franklin was appointed state’s attorney almost two years ago after Shumlin tapped his predecessor, Keith Flynn, to become Vermont’s public safety commissioner. Flynn’s resignation came after his 2010 re-election but before he began serving the new term.
Shumlin first appointed Franklin to fill the remainder of Flynn’s older term, as laid out in Vermont law, and Franklin took office on Jan. 21, 2011. He was then appointed to fill the newer term, which began on Feb. 1, 2011.
Sleigh argued the second appointment was invalid and asked VanBenthuysen to dismiss the criminal charges against his clients.
Among those clients is Roger Pion, a Newport man charged with driving a giant farm tractor over seven sheriff’s department cruisers.