Ruminations
| Publication year | 2019 |
| Pages | 16 |
The Constitutional Opinions of the Attorney General of Vermont
By Paul S. Gillies, Esq.
"It is my opinion and I so advise."[1]
The Attorney General is the prosecutor, defender, and advisor of the State, its chief law enforcement officer. As advisor, the 24 modern Vermont Attorneys General have written and published hundreds of opinion letters to governors, commissioners, and legislators. Together they reveal the cultural and legal changes that bedeviled and inspired Vermont state government during the last 115 years. They also represent an important source of Vermont constitutional law.
For much of the twentieth century, Vermont Attorneys General published their decisions in a biennial report, beginning at the time the office was reestablished in 1904, but the publication ceased many years before the statute mandating the report was repealed in 2009.[2] The A.G.'s office has a series of three-ring binders indexing the various opinions over the years, and the web page of the office provides links to digital versions of the letters of Bill Sorrell and T.J. Donovan. But those most recent A.G.s have issued significantly fewer public opinions than their predecessors. No lawyers, public or private, want to broadcast their positions on the law before their time, or be held to a particular argument when preparing a case, before it's clear what best fits the objectives of the litigation.[3]
The Value of an Attorney General's Opinion
What the State's highest-ranking lawyer thinks is not really precedent, in court at least, but the General Assembly certainly listens to what the officer thinks, and governors proceed at their risk in ignoring the advice of the one who will defend their decisions when challenged. Vermont's U.S. District court has acknowledged the opinions are not binding, but are "entitled to weight in determining the legislative intent behind a state statute."[4] When other sources fail to provide "controlling authority," the opinions take on increased weight, and when exigencies of a particular prosecution or defense require the State's lead attorney to take a position, it's worth exploring whether prior A.G.s might have taken a different position on critical issues.[5]
John Lysobey appeared pro se in a series of cases involving a claim of access to his property on Okemo Mountain 20 years ago, and relied on two opinions of the Attorney General, issued in 1970 and 1987, to buttress his arguments. Justice John Dooley gave them little respect. "The opinions of the Attorney General are, however, merely advisory opinions for the benefit of state officers." They have, he explained, "no binding effect in this Court."[6]
The duty to give opinions is codified in statute.
The Attorney General shall advise the elective and appointive State officers on questions of law relating to their official duties and shall furnish a written opinion on such matters, when so requested. He or she shall have general supervision of matters and actions in favor of the State and of those instituted by or against State officers wherein interests of the State are involved and may settle such matters and actions as the interests of the State require.[7]
This duty was first imposed on the Attorney General in 1904, in the act that created the modern A.G.[8] The A.G. was also required to attend each legislative session and advise and assist in the preparation of the legislative business, making the A.G. the early version of today's Legislative Council.[9]
Occasionally, one Attorney General overrules his predecessor, as Lawrence Jones did in an opinion about insurance, reversing an earlier opinion by J. Ward Carver.[10]
A Short History of the Office of Attorney General
The office was first created by legislation in 1790." The Attorney General has never been part of the Vermont Constitution, although attempts to include the office were proposed in 1941,1971,1983, 1997, 2003, and 2007, by the Senate, but only in 1971 did the idea make it to a public vote, which was then rejected by the people. The federal constitution doesn't mention the U.S. Attorney General either.
It was all about money. The 1790 act creating the office of Attorney General explained the reasons for the legislation. "There has been great neglect in collecting and paying into the state's Treasury the fines, penalties, & cost, that have accrued to the State in prosecuting criminals. whereby the finances of the State have been greatly impaired, occasioned by the want of some proper officer to collect, and be responsible for the same." The Attorney General was authorized to "prosecute all matters and causes that are properly cognizable by the supreme court in behalf of the State, to advise with the judges of said court in setting the form of all mandatory and other select writs, to file information ex officio in said court in all matters proper therefore; and who shall have full power to take all legal measures to collect all such fines . . . .[11] The incumbent could appoint a deputy if needed.[12]
Samuel Hitchcock was the first A.G. of Vermont. He was elected by the General Assembly for one-year terms. After three years, when Hitchcock was not interested in another term, the legislature chose Daniel Buck to fill that office, who served until 1795 when the office became vacant, and eventually was abolished. This happened in an unusual procedural process.
The House had passed a resolution in October 1795, ordering an enquiry into "the Benefits resulting from the Office of Attorney General and whether the act constituting said [office] be or be not expedient."[13] Yet a revised law was proposed and adopted on November 12, 1796. In that version, the legislature would still fill the office, although if a vacancy occurred it was to be filled by the Supreme Court, which also had the duty of advising and consenting to the Attorney General's choice of a deputy. The collection of fines, penalties, and fees was the first duty of the Attorney General under this law.[14] Then something very curious occurred. The office was not expressly abolished; it was just not filled. The House refused to meet with the Governor and Council in joint session to appoint an Attorney General the day following the passage of the reform act, on November 13, 1795.[15] In 1797, the legislature finally abolished the office, by adopting a comprehensive compilation of laws, and abolishing all laws not contained in the compilation.
Why the legislature abolished the office of Attorney General is unclear. Perhaps it was the size of Daniel Buck's bill or because no one wanted the office. The effect of the change was to make State's Attorneys the chief law enforcement officials in the state for more than a century.[16]
During the interim 109 years when Vermont was without a chief law enforcement officer, when the State needed representation in civil matters, leading private attorneys were hired. In the reported decision of Brackett v. State (1801), Richard Skinner, Bennington County State's Attorney, and David Fay, the previous State's Attorney, represented the State.[17] When Orleans County sued the State Auditor in 1893, over the county's claim for water rents based on the State's use of the courthouse and jail, F.D. Hale and Bates & May were hired to defend the State.[18] No attorney is listed as representing the State in the report of Brown v. State Treasurer (1887), where an old soldier tried and failed to obtain extra pay for his Civil War service.[19]
Governor Horace Fairbanks was the first to recommend creating a modern office of Attorney General. His 1876 Farewell Address mentioned that the State had paid out $3,500 to private attorneys for aiding in State trials that year alone. Not only would an Attorney General save that expense, but would provide assistance and direction to State's Attorneys, particularly in the more important criminal trials. State's Attorneys routinely served for single terms of two years, and needed a mentor to oversee their work. Grand juries would no longer be necessary, except in cases of treason and murder, and the information, the A.G. acting on his own discretion, would replace indictments for most cases.[20] Wheelock Veazey had recommended the same in his report on the completion of the Revised Laws (1880), and Governor John L. Barstow approved of it in his 1882 Inaugural, as did Josiah Grout in his inaugural of 1896, John G. McCullough in his 1903 Farewell Message, and finally Charles Bell in his 1904 inaugural. The legislature responded to these proposals by passing the 1904 statute.
The first law authorizing the employment of detectives was passed in 1894, and applied to the State's Attorneys.[21] In 1908, the legislature authorized the Attorney General to employ "such persons as he may choose to search for and pursue, or secure evidence against, persons supposed to have committed crime in this state."[22]
Before 1937, the office included the Attorney General, a secretary, and a detective. After that date, a Deputy Attorney General joined the office. Louis Peck was the first Assistant Attorney General, appointed in 1960, and only the third lawyer in the office, hired to handle the litigation expected to come with the laying out of the Interstates. Since that time, the office has grown into the largest law firm in the state.
Who were they?
The 26 men (and there have been only men) who served as Attorney General were a remarkable group. Sixteen had served as a State's Attorney before being elected, and eight were formerly Deputies Attorney General. Three also served as Municipal Judges (Rufus E. Brown, F. Elliot Barber, Jr., and Charles E. Gibson, Jr.), before or after their years as Attorney General, and one was a Vermont District Judge (John P. Connarn) after his term ended.
Fifteen were graduates of a law school.
The longest-serving...
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