January 26, 2012, Don Kreis: Vermont was NOT out-lawyered

Don KreisThe eternal quest for a good “second day” story has painted into an unhelpful corner the public discussion of the State of Vermont’s loss in Round 1 of the Vermont Yankee Litigation.

The 102-page opinion of U.S. District Judge J. Garvan Murtha now fully digested, public discussion has turned to why he agreed with Entergy that federal law preempts the Vermont Legislature from asserting the right to shut down Vermont Yankee as of March 21, 2012.  One theory, notably advanced by Associated Press reporter David Gram’s dispatch of earlier this week, is that Vermont got out-lawyered.

I respectfully disagree.

“Some observers are starting to see a pattern — one in which [Attorney General William] Sorrell and his team have gone to the legal big leagues three times and fallen flat on each attempt,” Gram reported.  “Some observers” turns out to be just one observer, my distinguished colleague and fellow Vermont Yankee blogger Pat Parenteau.  He told AP that the Vermont Attorney General and his office now have “sort of a reputation,” with both the U.S. Supreme Court as well as the U.S. Court of Appeals for the Second Circuit, “of not having their act together.”


Even Governor Shumlin appears to have thrown Sorrell under the bus, based on the way Shumlin’s latest press conference was reported in vtdigger.org.  Does the governor have confidence in the attorney general, despite his string of defeats?  According to the story filed by vtdigger editor Anne Galloway, here was the governor’s answer to that question:

“’This is an absolutely inappropriate time to question our attorney general,’ Shumlin said. ‘They work very hard there and … I really don’t believe it’s healthy to second guess the attorney general. They argued forcefully for the state of Vermont.’”

The praise here is so faint as to be undetectable.

Conversely, a love-fest has erupted over Kathleen Sullivan, the Washington D.C. lawyer who headed up the team that represented Entergy before Judge Murtha. “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,” Gram reported for AP.  My colleague Pat Parenteau told AP that Sullivan “had a very powerful, cohesive, seamless narrative — the law, the facts, the policy, everything.”

My 14 years on the inside of judicial and quasi-judicial decisionmaking bodies (i.e., in chronological order, the Maine Supreme Judicial Court, the  U.S. District Court for the District of Maine, the Vermont Supreme Court, and the New Hampshire Public Utilities Commission) leave me convinced that people on the outside always overestimate the extent to which the quality of the lawyering determines the outcome of cases.  Judge Murtha’s decision is not a sign that he liked Kathleen Sullivan better than he liked Bridget Asay.  It is a reflection of the fact that Asay had the tougher job – defending a state statutory scheme that could not plausibly be disentangled from the federally preempted realm of radiological safety.

I have not met Judge Murtha.  But if he is like all of the federal judges I have met, he takes pride in his ability to look past what the advocates present, in quest of the deeper truths that the applicable facts and law themselves reveal.  Unlike their state counterparts, federal district judges have ample resources with which to dig into the cases they hear.  Although we law professors are in business to train lawyers and thus have a vested interest in convincing our trainees that the quality of their work can be outcome-determinative, nothing about the present case suggests that Entergy’s victory turned whose voice was more mellifluous or whose PowerPoint presentation was more fluid.

Zooming out a bit, the whole notion that Attorney General Sorrell is now responsible for a “string of defeats” in federal court is profoundly flawed.  Almost without exception, when a state becomes a party in a federal civil proceeding it is because there is a plaintiff with a credible argument that the state has exceeded its authority as a matter of federal law.  This is not a level playing field.  And it is a game in which most victories go undetected because they consist of situations in which the attorney general has helped governors and legislatures advance policy objectives without triggering federal lawsuits in the first place.

It is worth noting, however, that federal courts can and do point out when lawyering displeases them.  This is a phenomenon with which Assistant Attorney General Asay is familiar in the wake of her oral argument before the U.S. Supreme Court last year in Sorrell v. IMS Health, Inc.  This is one of the three “trips to the legal big leagues” to which my colleague Pat was referring.  (The other is Randall v. Sorrell, the U.S. Supreme Court ruling that struck down Vermont’s campaign finance law in 2006.)

At issue in Sorrell v. IMS was the Vermont “prescription confidentiality” law, which prohibited pharmacies from selling to drug companies information about which medications individual Vermont doctors were prescribing for their patients.  At oral argument, Justice Alito asked Asay whether the statute precluded the selling of prescription data for any purpose, as opposed to banning the sale of such data only for the purpose of helping drug companies market their products to doctors.

The Solicitor General had advanced this broader view of the statute on behalf of the Obama Administration.  If correct, the interpretation would have made the state law seem more benign from a First Amendment perspective as a neutral attempt to protect patient privacy as opposed to an effort to restrict commercial speech.  But when Asay told Justice Alito she agreed with the Solicitor General, not one but three justices (Alito, Kennedy and Scalia) leapt down her throat for having taken a position inconsistent with the one she and her colleagues had advanced in the lower courts.  They seemed especially annoyed when she told them the state essentially let the U.S. Court of Appeals for the Second Circuit reach that conclusion without agreeing or disagreeing with it.

“Could you please answer yes or no?,” Justice Alito barked at Asay.  “If you’re changing your position, you’re changing your position.  It seems to me this is an important point.  And if the Second Circuit based its decision on a misunderstanding of Vermont’s interpretation of its own statute, I would think you would at least bring that out in a petition for rehearing [submitted to that Court].”

All of this would be mere professional gossip had Justice Kennedy not made a point of complaining about Asay’s oral argument pirouette in his opinion striking down the Vermont statute on First Amendment grounds.  Kennedy wrote that both the drug companies and the lower courts “were entitled to rely on the State’s plausible interpretation of the law it is charged with enforcing. For the State to change its position is particularly troubling in a First Amendment case, where plaintiffs have a special interest in obtaining a prompt adjudication of their rights, despite potential ambiguities of state law.”

This is not a page from the U.S. Reports that either Asay or Sorrell will be showing their grandchildren.  But for present purposes it suffices to say that Judge Murtha had no such complaint about the quality of the advocacy in the Vermont Yankee case.

Thus, if you are among those who hope Vermont Yankee will be forced to close by virtue of state law, you should stop complaining about the lawyers who are making your case for you.  Judge Murtha’s decision means we are now, roughly, finished with the first five innings.  When Sorrell files his notice of appeal – and, surely, he will – the remaining innings will be played before the U.S. Court of Appeals in New York and, possibly, the U.S. Supreme Court.  Blame a bad statute, and not bad lawyering, if Entergy’s victory truly holds up.

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