Legal Bills

it gets expensive arguing your case in federal court ... especially when you lose
 
by John McClaughry
 
Franklin County Republican Senator Randy Brock, who is challenging Gov. Shumlin this fall, offered this comment after the state was blown out of court in the Entergy case: “We seem to be spending a huge amount of money over and over again in defending laws that don’t conform to federal requirements.”

It’s worth looking more closely at the three recent examples.

In 1997 the legislature, led by Senate President Peter Shumlin, passed a draconian campaign finance restriction bill (Act 64). Shumlin voted yes.

The case against it went to the U.S. Supreme Court which, after a comically embarrassing courtroom performance by attorney general William Sorrell, tossed it out as an unconstitutional restriction on speech under the First Amendment. The state’s legal costs were estimated at $1.5 million.

In 2007 the legislature passed its selective pharmaceutical data mining prohibition (Act 80). Senate President Shumlin voted yes. This case also went to the U.S. Supreme Court, which tossed it out as another invasion of First Amendment rights. The state’s legal costs were estimated at $2 million plus.

In 2006 the legislature passed a bill to require that Entergy obtain legislative approval before the Public Service Board could issue a final order on its application for a certificate of public good to keep on operating the Vermont Yankee nuclear plant (Act 160).

Shumlin was not in that legislature, but when he returned as Senate president the following year he was the foremost champion of using that act to drive Entergy out of the state and shut down the reactor.
The Entergy court found among other defects that Shumlin and others had illegally interfered with interstate commerce by conditioning that legislative approval on Entergy supplying electricity to Vermont utilities at below-market rates.

Attorney General Sorrell has now told the media that the state has spent some $380,000 so far defending the Entergy case. How much more it will cost if the state appeals to the circuit and Supreme Court levels can only be imagined- especially if Entergy, the likely winning party, demands reimbursement from Sorrell for its legal expenses.

Not included in any legal bill was the expense of having Sorrell’s staff spend sixteen months sorting through two million subpoenaed communications from within Entergy. This blatantly political fishing expedition came up completely dry, and Sorrell – wisely for once – chose not to prosecute Entergy as a criminal enterprise.

The constitutional fidelity of Shumlin, Sorrell, and their legislative accomplices was best illustrated by Senate President Peter Welch, who later said, as a Congressman, “we can do whatever we want, until the Supreme Court tells us we can’t.”

After three stinging judicial defeats – two in the U.S. Supreme Court – one would hope that the present ruling faction in Vermont would come to accept the view that the Bill of Rights counts for something, and that simony and extortion are not acceptable government practices.

Comments

[Paul Renner]

Good review John. The common link among all three of these cases is that each issue was a high priority for the so-called Vermont Public Interest Research Group (VPIRG). That organization also has its fingerprints on a number of other very questionable legislative initiatives. When are Vermonters going to wake up and recognize that the staff at VPIRG really have no interest at all in Vermont's public interest, it is only their interest they care about.

Furthermore, legislators took an oath of office to defend the constitution. It appears that they would rather take their marching orders from the likes of VPIRG than honor their oath of office.

[Rich Lachapelle]

In fairness, Mr. Sorrell is not entirely to blame for these court losses. As Attorney General, and of the same party as the majority in the Legislature, his hand was forced in defending these cases. In all three cases, our Democrat-run Legislature came up with the usual sloppy lawmaking, based on the guiding principles of liberalism: emotion, feelings and victimhood. Much to their surprise, the Federal Courts still operate on the rule of law and constitutional principles,
at least for now. I wish I could say the same for the Vermont Supreme Court.

[Liberty Now]

VPIRG- Vermont's Shadow Government

[Pro Growth]

VPIRG: Vermont's De Facto Government?

[CHT]

Shumlin had an agenda, Close VY
what ever the cost.

Sorrel, just like to see his name
in in the press, No matter the cost.

Welcome to Vermont Politics !!

[John McClaughry]

Rick Lachapelle has a point - Sorrell was forced to defend these cases, and the legislature dealt him a weak hand. But what we don't know is the extent to which Sorrell and his staff provided poor legal advice to the legislative committees fashioning these three bills. Some assiduous research into committee records could probably shed some light on those questions.

[timv]

This would be expecting the VT legislature to act like adults.
No way that happens.

[Lupus Nomen]

Mr. McClaughry,

Isn't it primarily Legislative Council, not the AG's office, which provides legal advice to the Legislature?

Using the "defeat" in the Entergy Case (which is actually a victory for the separation of powers and good government) to attack Sorrell reeks of political opportunism. Perhaps the VTGOP smells a political opening in the AG’s race. Long term, however, these attacks give a pass to the proponents of Act160 and Act74, notably Governor Shumlin. “The law was sound,” he can say, “We would have won, if only we had better (read more expensive) lawyers…”

If you don’t think Shumlin will try to find a way to spin this to his political advantage; you haven’t been paying attention for the last 20 years.

For a contrary view to the argument that Vermont was out-lawyered, read:

http://vtyankeelawsuit.vermontlaw.edu/don-kreis-vermont-was-not-out-lawyered/