MONTPELIER, Vt. (AP) — The first was
Vermont's campaign finance law setting the lowest contribution limits in the
country — shot down by the U.S. Supreme Court.
The same fate befell the state's attempt to
restrict drug company efforts to collect data on doctors' prescribing habits.
On a 6-3 vote, the justices said Vermont's law was an unconstitutional
infringement on free speech by drug and data collecting companies.
Now, in yet another case that has garnered
national attention, the office of Vermont Attorney General William Sorrell has
suffered a stinging defeat, this time in a federal trial over the state's bid
to close the Vermont Yankee nuclear plant.
Some observers are starting to see a
pattern — one in which Sorrell and his team have gone to the legal big leagues
three times and fallen flat on each attempt.
"The state now has sort of a
reputation in the 2nd Circuit and the Supreme Court of not having their act
together," said Patrick Parenteau, a former state commissioner of
environmental conservation who is now a professor at Vermont Law School.
The losses have been costly for Vermont.
The state paid out about $1.5 million to the plaintiffs in the suit that
resulted in its campaign finance law being overturned in 2006. In the
prescription data case, Vermont already has paid more than $1.7 million to a
pharmaceutical trade group and is expected to have to pay $3.8 million to cover
legal costs incurred by the data companies.
The total, at least $7 million, nearly
equals the roughly $8 million annual budget of Sorrell's office. The payouts
will come from the state's $1.4 billion general fund.
Sorrell, 64, was appointed attorney general
in 1997 by the governor at the time, Howard Dean, and has been elected to seven
two-year terms since then. He attributes the court losses essentially to a
string of bad luck, some of it resulting from trying to defend Vermont's
federal laws before a more conservative federal judiciary.
He also maintains that his office has its
share of victories, including a 2007 case in which Vermont defended its effort
to follow California in adopting new and more aggressive car fuel economy
standards.
"That we tried successfully, and it
now is the national standard for emissions from autos, and that will have a
profound impact on the quality of our air and fuel efficiency," Sorrell
said.
In the three big losses, some lawyers
noted, Sorrell's office was trying to defend state legislation that courts
found simply didn't pass constitutional muster.
"They've all been tough cases. Our
Legislature has pushed the envelope in a number of policy issues," said
Sandra Levine of the Conservation Law Foundation, which supported Vermont in
both the auto emissions and Vermont Yankee cases.
Sorrell, a Democrat who was re-elected with
62 percent of the vote in 2010, appears to be on solid footing politically as
this year's election season approaches. Given his closeness to Dean, still a
power broker in the state, Democrats are unlikely to challenge Sorrell in a
primary.
And Republican criticism likely would be
muted by the fact that the three biggest cases lost by Sorrell's office came
while trying to defend legislation most members of that party opposed.
Sorrell acknowledged that, with U.S.
District Judge J. Garvan Murtha's decision last week that Vermont Yankee can
stay open over the state's objections, his office is coming off a loss.
"I respect the right of people to
Monday morning quarterback," he said.
In at least two of the cases, some found
fault in the courtroom performance of Sorrell and his team.
The book "A Good Quarrel: America's
Top Legal Reporters Share Stories from Inside the Supreme Court," edited
by Timothy R. Johnson and Jerry Goldberg, said Sorrell himself was caught
flat-footed when trying to defend the state's campaign finance law before the
Supreme Court.
"For twenty minutes, Sorrell would
have a face-to-face chance to persuade any justices who might be sitting on the
fence. Unfortunately for Vermont, Sorrell's appearance before the Court proved
rocky," the book said.
As he began his argument, Sorrell was hit
with a barrage of tough questions from Chief Justice John Roberts. The book's
account says, "Off balance from the start, Sorrell never fully recovered,
as other justices picked up where Roberts left off."
Before that Supreme Court appearance, legal
observers said Vermont faced an uphill battle in persuading the increasingly
conservative court to leave Vermont's limits on campaign contributions in
place. It was largely the same court, Sorrell noted, that later decided the
Citizens United case, a 2010 decision that critics say has unleashed a torrent
of corporate money into trying to influence elections.
In a two-day preliminary hearing in June
and a three-day trial in September on the Vermont Yankee case, other senior
lawyers in Sorrell's office presented the evidence and arguments. Several
observers said they were outclassed by a smoother and more high-powered
presentation put on by the legal team for plant owner Entergy Corp., led by
Kathleen Sullivan.
The mellifluous voice of Sullivan, a former
Harvard Law School professor and Stanford Law School dean sometimes mentioned
as a candidate for the U.S. Supreme Court, carried to the back of the courtroom,
while spectators had to struggle to hear the arguments of Assistant Attorney
General Bridget Asay, who handled part of the state's case.
Parenteau, who attended part of the trial
in Brattleboro and has blogged about the Vermont Yankee case, faulted the state
for breaking up its presentation among a team of lawyers, adding that while
Entergy used more than one lawyer, Sullivan clearly led the presentation.
"She had a very powerful, cohesive,
seamless narrative — the law, the facts, the policy, everything. The state's
case was more fragmented. They didn't have a clear lead who could go one on one
with Sullivan," Parenteau said.
Sorrell said he expected Entergy had spent
more on legal fees than the entire annual budget of his office — about $8
million. But he said his office has always reaped more in judgments and
settlements than it has paid out. Deputy Attorney General Janet Murnane
provided a spreadsheet showing the office had recovered nearly $82.4 million in
the past 30 months.
An Entergy spokesman could not say whether
the company would try to recover those costs. The company's Chanel Lagarde
said, "Right now our focus is on reviewing the court's decision."
Copyright
2012 The Associated Press.