Editor’s note: This op-ed is by M. Jerome Diamond, an attorney in Montpelier who was Vermont attorney general from 1975-81.
Following Judge Murtha’s decision in the Entergy case, there were a number of articles written critical of Attorney General William Sorrell and his office’s handling of that case and two other high profile cases. When one criticism leveled indicated that people in the back of the courtroom couldn’t easily hear the arguments of Assistant Attorney General Bridget Asay, as compared to the “mellifluous” voice of Entergy’s lead attorney that could be heard everywhere, it seemed the political “silly” season had started. And, by the way, everyone knows the judge sits in the front (not the back) of the courtroom and would have had no problem hearing any of the the state’s counsel! But what follows is not about the politics of 2012, it is a closer look at what I believe are unwarranted criticisms levied against Attorney General Bill Sorrell and his office.
For those who said the Vermont Attorney General’s Office was just not in the same league as Entergy’s legal team, you should know that the office went head to head against two major national law firms that represented the auto industry in 2007 and won. In that case, Vermont, and a few other states, had adopted California’s tough auto emission and fuel economy standards. The auto industry filed suit to block the implementation of those rules in every state where they had been adopted. But the first case to make it to trial came up in Vermont. So in some respects, the Attorney General’s Office was not only defending Vermont’s rules but setting the precedent for how these new rules would fare in litigation everywhere. It was a very important win for Vermont and a number of other states, as well as for the national environmental protection organizations that were part of the case.
Another focus of the critics was the U.S. Supreme Court’s declaration in 2006 that Vermont’s campaign finance law that limited donations and expenditures was unconstitutional. Some blamed Sorrell himself for his argument. What seems to have been ignored was the thrust of the conservative court in its questioning. Chief Justice Roberts led off with, and other justices continued to press, with questions about Vermont’s history of election fraud since that was the only basis upon which the conservative members of the court would consider upholding Vermont’s law. You can’t tell the court what it wants to hear if it doesn’t exist. Vermont’s law was not based on a history of election fraud; it was an attempt to make sure the future of Vermont politics was not controlled by money, so that the cancer that is destroying politics everywhere else could not destroy Vermont’s.
Vermont’s campaign finance law was an example of the states being laboratories for change under our system of federalism in this country. That would also be true of the other two statutes that the Vermont Attorney General’s Office was obligated to defend. When the Legislature adopted the data mining law which restricted the collection and use of prescription data, and when it adopted the statute in 2006 and acted again in 2010 to restrict Entergy’s ability to renew its operating license, it was not only acting as a laboratory of change, the legislature was clearly pushing the envelope.
At the time the Legislature adopted the data mining statute, a similar statute had already been declared unconstitutional in New Hampshire. Vermont knew it would be sued and if it lost, it would have to pay the attorneys fees for the challengers of the statute. Ultimately, Vermont was joined by 35 states and the federal government in its argument to the U.S. Supreme Court to uphold the law, but lost nonetheless. You cannot fault the attorney general for losing cases where the Legislature has chosen to push the envelope, knowing the financial risks it faces when it passes the legislation. If the Legislature had not been warned of the financial risk that would be another matter, but the Legislature in each circumstance was warned of the potential for litigation, the fact that Vermont’s laws would be judged by an increasingly conservative federal judiciary, and the financial risk if the state lost in the litigation.
There are some that blame the attorney general for the fact that these three losses have cost the state almost $3.2 million so far (not the $7 million stated as a matter of fact in some news reports). Other attorneys’ fees from these cases are being litigated and subject to appeals. So only time will tell if Vermont will owe additional fees. But three cases, over a number of years, do not define the success or quality of the office. The Vermont Attorney General’s Office brings in about $40 million a year in judgments and settlements, far more than what has been paid out as a result of the lost cases, and far more than the $8 million that is budgeted for the entire operation of the office. Furthermore, Bill Sorrell is a nationally known and respected attorney general. Not only is he a past president of the National Association of Attorneys General, but he is a winner of the Kelly-Wyman Award honoring the outstanding attorney general in the entire country. He is known as an aggressive, competent leader who champions enforcement of Vermont’s consumer and environmental laws. And he has built the same kind of office.
Examples: Assistant Attorney General Scot Kline, a former Chittenden County state’s attorney, experienced civil litigator, and leader of the state’s team in the Entergy case, was the state’s lead counsel in the successful auto emissions case. Assistant Attorney General Bridget Asay, who was part of the state’s team in the Entergy case, is nationally recognized and the recipient of national awards for her advocacy skills. Prior to her coming to the Attorney General’s Office, she coupled a Harvard undergraduate degree with a Yale law degree followed by clerkships with the Vermont Supreme Court and Vermont Federal District Judge J. Garvan Murtha. Before Julie Brill was appointed by President Obama to a seat on the Federal Trade Commission, at the Vermont Attorney General’s Office she was nationally recognized as the foremost authority in the country on privacy rights. And one cannot attend a national meeting of attorneys general and fail to see Vermont assistant attorneys general, like Elliot Burg and Suzanne Young, on panels, leading discussions on prominent national issues.
It’s easy to look at a few cases and find something to fault. But that is not the true measure of an entire office or of the person that heads and has built that office. I know something about attorney general offices. I served three terms as Vermont attorney general and since 1997 have spent most of my time on behalf of private clients meeting with state attorneys feneral across the country and attending their meetings and conferences. And my observations are not partisan. I have supported Bill Sorrell as a Democrat and Jeff Amestoy as a Republican, before him. Judge an office by its entire record. On that basis, Attorney General Sorrell and his office have been, and continue to be, outstanding advocates for the people of Vermont and their state government.
