The Vermont Supreme Court issued its ruling earlier this month on a legal dispute between Vermont State Auditor Doug Hoffer and Vermont Attorney General Charity Clark, with the two sides viewing the decision in different ways.
Hoffer, a Democrat/Progressive, brought a lawsuit against Clark, a Democrat, and her office more than a year ago.
The dispute centered on a bid by Hoffer to get answers from the Vermont’s Attorney General’s Office to questions that his office posed when conducting an audit related to a tax-increment financing project in Burlington.
The attorney general responded to the questions by referring Hoffer to other entities for answers.
Clark hailed the unanimous high court ruling as victory for the attorney general’s office, while Hoffer saw it another way.
“We are pleased with the decision. This is the outcome we predicted when we were first threatened by a lawsuit from the auditor, so no surprise in that respect,” Clark said Thursday. “The Supreme Court found we had done our job and we won the case.”
When the lawsuit was filed more than a year ago, Clark called it “ill advised” and “unfortunate.”
Hoffer on Thursday referred to the ruling in different terms.
“The ruling by the court was a split decision,” he said, highlighting a part of the ruling that affirmed his right to bring the lawsuit. That’s important, Hoffer said, in ensuring that there is a checks and balance system in place.
“From the very beginning,” Hoffer added, “the attorney general claimed we didn’t even have the authority to sue her.”
Hoffer argued in the lawsuit that the attorney general’s office did not provide him with legal opinions he had asked for regarding an audit he was conducting related to a Burlington tax increment financing development, also known as a TIF.
The Vermont attorney general’s office, in court filings, contended that they did respond to the auditor’s request by referring him to other entities responsible for implementing TIF law.
As part of his legal action, the auditor said he wanted the justices to rule that he had a right to bring the lawsuit against the attorney general’s office, In addition, the auditor wanted the Vermont Supreme Court to compel the attorney general’s office to answer specific questions that were posed.
The high court in its ruling last week decided that Hoffer had the right to bring a lawsuit against the Vermont attorney general’s office, but he lost on the matter of the specific questions.
Justice Nancy Waples, who authored the 30-page opinion, noted in the opening line how rare this type of case was for the high court.
“This appeal calls us to settle an unusual dispute between Vermont’s Auditor of Accounts and Attorney General, two statewide elected officials,” Waples wrote.
“The Auditor sued the Attorney General, alleging that she has failed to comply with her statutory obligation to provide legal advice,” the justice added. “The Auditor seeks a declaratory judgment that he has the right to retain counsel to sue the Attorney General and that the Attorney General must advise the Auditor on questions of law pursuant to statute.”
And, according to Waples, the auditor was seeking a court order compelling the attorney general to answer two specific questions.
Washington County Superior Court Judge Timothy Tomasi dismissed the auditor’s claims at the trial court level leading to the appeal before the Vermont Supreme Court.
Waples, in the high court’s ruling, wrote, “We affirm in part and reverse in part.”
Vermont Law and Graduate School Professor Peter Teachout, who specializes in constitutional law, said Thursday the high court determined that the attorney general was required to give legal advice.
“But not required to provide legal answers,” Teachout added. “In this case, in fact, the Attorney General has complied with the statute because with these two questions to which it has not provided definitive answers it has provided the auditor with legal advice, and the advice is see how these other institutions interpret these terms.”
Teachout added that he believed that Clark and Hoffer each had merits in their views of the high court’s decision.
“I think they both are right,” Teachout said. “The attorney general prevails in this specific case because the attorney general is not required to do what the auditor was asking the court to compel the attorney general to do, which is to provide answers to the two questions that it didn’t provide answers to.”
On the other hand, Teachout said, “the attorney general’s office did not prevail on the question of whether the attorney general can ever be compelled by a court to perform legal duties.”
