Sept. 13, 2011, Cheryl Hanna: Further Thoughts on the Trial

Professor Cheryl HannaNeither Professor Parenteau nor I were able to attend the trial today.  And it is a bummer that I can’t attend Wednesday either because I would love to see Entergy attorney Kathleen Sullivan’s closing argument. Trust me, the federal courthouse in Brattleboro is the best place to be tomorrow — with the possible exception of the Phish benefit concert in Essex.  But, alas, I’m going to neither!

Thanks to the BFP for posting an article on today’s proceedings, posted here:|topnews|text|FRONTPAGE

It was great to see so much interest from the media yesterday, and kudos to all the reporters who sat through the long hours of testimony! It is important the media are there to cover this, so we can all be better informed.

So, I have been thinking about the case as it develops and will share a few thoughts before the final day tomorrow.

As both Prof. Parenteau and I  noted at the end of yesterday, the fact that this case is turning out to be so fact intensive remains a bit troublesome.  It is just not clear how Judge Murtha is going wade through the literal volumes of legislative records and other documents to decide what the VT Legislature really intended. One scenario – and I am just speculating now – is that the judge simply splits the difference, finding that safety was among some other plausible reasons for refusing to issue a certificate of public good.  That would leave the state in a “mixed motive” position, having regulated for both permissible and impermissible reasons.  That outcome seems increasingly plausible, given the testimony from both yesterday and today (thanks again BFP).

Sullivan, of course, clearly anticipated this could happen, which is why she argued to the court in her opening statement that, if the court finds mixed motives, then the burden is on the state to prove that it would have done the exact same thing had it not taken the impermissible reason into account.  In other words, the burden shifts to the state to make its case that regardless of the safety concern, it still has a good reason for shutting down the plant.

What is key to this argument is that often the party who bears the burden loses.  Right now, it is Entergy who technically bears the burden of showing that the Legislature’s actions were impermissible.  But if Entergy succeeds in making its case that safety was one motive, an important legal question is: “Now what?” Does the pre-emption doctrine allow for both legitimate and illegitimate regulatory motives?  Who bears the burden?  And, most fundamentally, what exactly did Congress intend for the state’s role to be when the state mingled illegitimate motives along with legitimate ones?

These are hard-core Constitutional law questions, and ones that Sullivan has no doubt thought long and hard about.  As we mentioned yesterday, she is urging the court to draw from First and Fourteenth Amendment cases if it finds mixed motives.  The effect of that would be to have a court treat the state Legislature with the same skepticism that it does in individual rights cases in states’ rights cases, taking a hard look at state actions that appear to violate the domain of federal power.  Generally, courts give more deference to state legislatures when economic legislation is at issue than when fundamental rights are at issue. But here, Sullivan is essentially arguing that concerns over state infringement of pre-empted federal law are the equivalent of the state establishing religion or discriminating on the basis of race.  Super interesting, and the kind of argument that can only be crafted from an understanding of the inter-relationship between constitutional doctrines.

I will reserve comment on whether I think she is correct as I would need to really think through far more carefully the parameters of the argument and take a much closer look at pre-emption cases where mixed motives were at issue.  While I do that (in all my spare time) I should note that this argument is one that could excite the imagination of the Circuit and the Supreme Courts. It has certainly excited mine.

But, again, this is all speculation, and any issues on appeal are far off.  For now, I would expect the state to be carefully refining its constitutional arguments for closing because even if VT has succeeded in convincing the court that it wasn’t completely out of line when passing its various laws related to VY, it still has to provide a much stronger legal framework as to what to do in mixed motive case than it has thus far.

I am still skeptical — but open to persuasion —  about Vermont’s case, particularly its continued emphasis on the argument that VY waived its right to bring this suit or should have objected before now.  While that argument may be based in fundamental fairness, it is not one particularly well supported by law, and I think the state has to really focus on constitutional law questions to prevail.  I suspect that’s what everyone in Brattleboro will be doing tonight- thinking Con Law – which is this professor’s idea of a perfect night (seriously).

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