The Vermont Supreme Court is weighing in on a rare case in which one elected statewide office holder filed a lawsuit against another.
State Auditor Doug Hoffer, a Democrat/Progressive, filed a lawsuit against Vermont Attorney General Charity Clark, a Democrat, and her office more than a year ago.
In the legal action, Hoffer contended that the Attorney General’s Office had failed to provide him with legal opinions that he sought while the Auditor’s Office was conducting an audit related to the city of Burlington. The attorney general’s office is statutorily required to provide legal advice to public officials.
Hoffer also requested that the judge permit him to hire an outside attorney for the lawsuit.
Clark had challenged Hoffer’s claims, and was granted dismissal of Hoffer’s lawsuit in Chittenden County Superior civil court in Burlington where it was first filed. Hoffer later refiled the case in Washington County Superior civil court in Montpelier where it was again dismissed.
In the case brought in Washington County, Judge Timothy Tomasi also denied a request by Hoffer that the state pay more than $100,000 in attorney fees racked up by his lawyer in both cases, Matthew Byrne, and Byrne’s firm, Gravel & Shea.
Hoffer appealed the matters to the Vermont Supreme Court, prompting a hearing Wednesday where attorneys for both offices presented competing arguments.
“Right now, the office of the auditor cannot do its job,” Byrne said as he began his arguments to the justices.
“The attorney general has said that it will no longer respond to any request for legal advice from the auditor,” Byrne added. “The attorney general has also taken the position that the auditor cannot challenge that position in court. Those decisions cannot stand.”
Byrne pointed to state law, which states that “the Attorney General shall advise the elective and appointive State officers on questions of law relating to their official duties and shall furnish a written opinion on such matters, when so requested.”
“The language of the statute is ‘shall’ and it is mandatory, so the AG has no discretion about whether to issue an opinion,” Byrne argued.
The dispute arose when Hoffer’s office sought legal opinions from the attorney general’s office on three questions related to an audit of a Burlington tax increment financing project, also known as a TIF.
The attorney general’s office, Bryne told the justices, “has conceded that it has not answered the first two questions.”
Justice Karen Carroll then interjected.
“She explained why she wasn’t answering the questions — because other groups in Vermont are the ones that make those decisions about that TIF issue,” Carroll said to Byrne, asking him, “Isn’t that advice to the auditor?”
Byrne replied that the response from the attorney general’s office still did not answer two of the three questions for which the auditor’s office requested legal advice.
“The statute says that they shall answer the questions of law and shall furnish a written opinion on such matters,” Byrne said.
Justice Nancy Waples then replied to Byrne that the attorney general appeared to have referred the auditor’s office to other state entities on the two other questions.
“Under the statute the attorney general has to advise or give advice,” Waples said to Byrne. “Doesn’t mean you have to like it, right? And maybe that’s the issue here.”
Jonathan Rose, a lawyer in the attorney general’s office, said during his argument that it was an “unusual case” but not necessarily a complex one.
The attorney general’s office did respond to three questions from the auditor’s office, he said. For two of the questions, though, staff referred the auditor’s office to administrative state agencies responsible for implementing TIF law.
Rose said, in response to a question from Waples, that there were checks on the attorney general when it came to whether the office was meeting its statutory requirements.
“We have two elected officials. If we allowed one elected official to sue the other one every time the first one thought the second one wasn’t doing their job properly, that wouldn’t be a very efficient recipe for government,” Rose said.
“The second point is that the attorney general is not without constraints in this situation,” he added. “The first, as I mentioned, is political. If the attorney general is not doing her job, she’ll presumably be held accountable for that through the political process.”
Rose also disputed the allegation that the attorney general would no longer provide legal advice to the auditor’s office.
“The attorney general’s response was limited to policy issues which fall under the rationale that those issues should be more appropriately addressed at the administrative agency responsible for them,” Rose said. “The attorney general never said she would stop providing legal advice to the auditor.”
The high court took the arguments under advisement and is expected to issue written rulings in the coming weeks.
