Win, lose or how you play the game? A look at Sorrell’s scorecard in federal court

Vermont AG William Sorrell. VTD File Photo/Josh Larkin

Critics of Attorney General Bill Sorrell question his defense of Vermont legislation in the federal courts, citing controversial campaign finance regulations, pharmaceutical marketing, and nuclear regulation laws.

Political competitor TJ Donovan has capitalized on these points, publicly criticizing Sorrell’s handling of these cases in recent debates. Meanwhile, legal and political experts argue that beyond the rhetoric, more subtle lessons underlie these cases.

At the heart of the issue is the relationship between the attorney general and the state Legislature, especially as state lawmakers craft innovative – and sometimes unconstitutional – legislation.

Sorrell has been handed defeats in three high-profile cases in federal court: Randall v. Sorrell (the campaign finance law that went to the U.S. Supreme Court in 2006), IMS Health v. Sorrell (the prescription drug case heard by the Supreme Court in 2011), and Vermont Yankee (the Entergy lawsuit he lost in U.S. District Court this year).

Vermont Law School professor Pat Parenteau said: “You can excuse maybe one loss, maybe two: but now it’s three and counting. At some point, the message is that Vermont laws come to court with a question mark. And that’s not a good situation.”

Parenteau argued that in the ongoing Vermont Yankee litigation, where plant owner Entergy is suing the state for alleged regulatory overreach, the state failed to deliver an “alternative narration” in the courtroom, leading to the loss of a winnable case. The suit has cost Vermont an estimated $400,000 so far in legal fees incurred by the attorney general’s office.

“The AG’s office did not match the skill and the strategy of Entergy’s team of lawyers,” said Parenteau, an environmental law specialist and former commissioner of the Department of Environmental Conservation. While Parenteau personally disagreed with U.S. District Court Judge Garvan Murtha’s January ruling favoring Entergy, he continued, “It’s not just about the merits [of the case], but it’s about who’s on the field. And that’s Bill’s responsibility.”

Parenteau’s critique of the Vermont Yankee case highlights the issue of whether the Vermont attorney general should hire outside legal counsel for cases, especially those taking place before the U.S. Supreme Court, where expertise is arguably required.

The Supreme Court’s 2006 decision to strike down Vermont’s campaign finance law as unconstitutional is an early case in point. ACLU executive director Allen Gilbert, whose organization sued Vermont in the case, noted that Sorrell himself took up the oral argument before the U.S. Supreme Court, in an unusual move for a state attorney general.

“Many people thought that was not the way the state was going to get the best representation,” said Gilbert. “You want to get somebody arguing your case who’s had experience.” In contrast to Sorrell, who had never argued before the Supreme Court, Gilbert said the plaintiff’s counsel James Bopp has extensive Supreme Court experience and campaign finance law expertise.

Less than three minutes after Sorrell began his oral argument, which lasted 20 minutes in all, one judge asked Sorrell how many cases of political corruption he’d brought as attorney general, a question which Gilbert said “flummoxed” Sorrell.

“How many prosecutions for political corruption have you brought?” asked Chief Justice Roberts. Sorrell answered that he hadn’t prosecuted any legislators or statewide officials, an answer which prompted skeptical questions on whether past political corruption really justified proposed campaign finance limits.

Meanwhile, opposition lawyer James Bopp argued that to justify the “lowest contribution limits in the nation and these very low expenditure limits, the State would have to demonstrate that Vermont is the most corrupt State in the Nation. And they’re far from it.”

At one point, Justice Antonin Scalia even joked that Sorrell in effect argued that Vermont legislators could be bought off with $51. The Court argument ended with a series of amusing technical examples, including whether buying doughnuts and coffee counted as political expenditures for the purposes of strict spending limits.

The campaign finance case underscores a debate over how much advice an attorney general should provide to state legislators as they craft legislation. Although the campaign finance bill first took shape in 1997 under former Vermont Attorney General Jeff Amestoy, it became law on Sorrell’s watch.

House Speaker Shap Smith said the AG’s office is more than willing to provide helpful input to lawmakers, as they adopt policy which may be constitutionally questionable. But Smith also explained that because the Legislature has its own legislative council for legal advice, sometimes the AG’s input is rare, or fundamentally a second opinion.

Smith defended the state Legislature’s past lawmaking; he said the state House and Senate haven’t passed any laws that are “clearly unconstitutional.”

Smith declined to comment on Sorrell’s overall record defending Vermont statutes. Characterizations, he said, should be left to legal pundits.

Some legal authorities are sympathetic toward Sorrell. Law professor Cheryl Hanna says that for the campaign finance and IMS cases at least, an increasingly conservative Supreme Court signaled an uphill struggle for anyone litigating those cases, regardless of how they handled them.

“You’ve got to understand: These cases were kind of losers to begin with,” Hanna said. “They were progressive statutes being taken to a conservative Supreme Court.” She said the perception that the AG’s office had not done a good job on these cases points to a lack of a “more nuanced understanding of what these cases were about.”

Hanna characterized the attorneys’ expenses the state has incurred as a result of the defeats as “a cost of doing business.” The campaign finance case cost the state about $1.6 million, while the 2011 IMS case cost about $2.2 million. IMS and Pharma sued the state of Vermont over a ban on prescription drug marketing to doctors; Vermont lost that case before the Supreme Court, in a 6-3 decision.

Hanna said that much legal advising on state legislation takes place behind closed doors, and that even with the best advice, the Legislature ultimately has a license to do what it wants. As for whether outside counsel or earlier legislative advice could have changed these outcomes in court, Hanna hesitated to take a stance. The facts, she said, made it hard to say for sure.

Two former attorney generals, Jeff Amestoy and Jerry Diamond, declined to comment for this story, though Diamond indicated that he respected Sorrell’s record. Assistant Attorney General Bridget Asay, who argued both the IMS and the Vermont Yankee cases, could not be reached for comment.

Amid the conflicting legal opinions, though, one point remains clear: Sorrell’s record defending Vermont legislation is politically important and has become a major talking point in a fierce primary contest.

“The problem for Sorrell is that he’s lost a couple of high profile cases,” Gilbert said. “As such, you’re obviously identified as a loser.”

In a political campaign, Gilbert continued, a constant question is how effectively a candidate can overcome a label, fair or unfair, that’s been attached to him. He concluded that the answer is in the hands of voters.