McMullen v. Comm. for Justice & Fairness, No. 1246- 10-12 Cncv (Mello, J., Jan. 28, 2013)

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION Chittenden Unit Docket No. 1246-10-12 Cn cv

Jack McMullen Petitioner

v.

Committee for Justice and Fairness Respondent

DECISION ON PETITION FOR DETERMINATION
Jack McMullen petitions this court to determine th at the Committee for Justice and Fairness (CJF) made “related campaign expenditures” in the form of television and direct mail advertisements on behalf of McMullen’s opponent Wil liam Sorrell during the 2012 Democratic primary campaign for Vermont Attorney General. If t his court determines that CJF’s expenditures were “related campaign expenditures,” then both CJF and Sorrell could be subject to civil penalties in a separate action for violati ng Vermont’s campaign contribution and reporting laws. McMullen is represented by Paul Gil lies, Esq. CJF is represented by Joshua Diamond, Esq. Sorrell is represented by Richard Cas sidy, Esq.

FACTS
The following facts are taken from the parties’ st atements of undisputed material facts as well as the evidence presented at the January 23, 2 013 hearing.
Jack McMullen was the Republican candidate for the office of Vermont Attorney General in the 2012 election. CJF is a political action com mittee (PAC) based in Washington, D.C. that has received contributions from the Democratic Atto rneys General Association. CJF spent $194,080.75 on a television advertisement and direc t mail advertisements in support of Democratic candidate William Sorrell shortly before the Vermont primary election in late August. Sorrell is a member of the Democratic Attor neys General Association. Sorrell did not report any contributions to his campaign from CJF.

Former Governor Howard Dean narrated the televisio n advertisement for CJF. The CJF television ad narrated by Dean shows two images of Dean and Sorrell standing side by side in front of a podium. Dean says:
They sold dishonest mortgages, and illegally forecl osed on peoples’ homes. But when the big banks tried to get away with it, one m an in Vermont held them accountable. Attorney General Bill Sorrell cracked down on deceptive bankers and won millions in relief for homeowners. He’s fou ght to stop predatory lenders2

and protected seniors from scams. I’m proud to call Bill Sorrell my friend, but more proud to call him Vermont’s Attorney General. 1

On July 19, 2012, prior to narrating the advertisem ent, Dean conducted a joint press conference with Sorrell at Burlington City Hall at which he fo rmally endorsed Sorrell’s candidacy. The images of Dean standing with Sorrell used in the te levision advertisement appear to have been taken at this event. Sorrell served as the Secretar y of Administration under Governor Dean from 1992–97. Dean appointed Sorrell to the position of Attorney General in 1997.
In August, apparently after the television adverti sement first aired, Dean also narrated a radio advertisement endorsing Sorrell’s candidacy. The radio advertisement was paid for by Sorrell’s campaign.
McMullen alleges that Dean also consulted with Sor rell and advised him on how to run his campaign prior to narrating the advertisement; advised CJF on how it should spend its money to support Sorrell; and attended fundraising events and a television show with Sorrell. However, McMullen did not offer any admissible evidence to p rove these allegations.
McMullen was the only witness at the evidentiary h earing. In support of his claim, he offered CJF’s campaign finance disclosure forms, So rrell’s campaign finance contribution report, CJF’s television advertisement, and the radio adver tisement narrated by Dean and paid for by Sorrell’s campaign. No evidence was offered regardi ng CJF’s direct mail advertisements.

ANALYSIS

I. Whether McMullen May Bring This Action
Ordinarily, campaign finance enforcement actions a re brought by the attorney general or a state’s attorney. See 17 V.S.A. § 2806a. McMullen claims that complaints about CJF were made to the Attorney General and the Addison County State’s Attorney, but neither office decided to investigate or prosecute. Accordingly, h e petitioned the court pursuant to 17 V.S.A. § 2809(e) for a determination that CJF violated the law. McMullen appears to be the first candidate to invoke this procedure.
Section 2809(e) states that “[a] candidate may see k a determination that an expenditure is a related expenditure made on behalf of an opposing candidate by filing a petition with the superior court of the county in which either candid ate resides.” 17 V.S.A. § 2809(e). CJF argues that McMullen does not have standing to sue because he was not Sorrell’s opponent at the time of the expenditure. CJF made the allegedly illegal expenditures during the weeks leading up to the Vermont primary election. At that time, T.J. Do novan was Sorrell’s direct opponent, not McMullen, because Donovan challenged Sorrell in the Democratic primary race for the Attorney General position.
However, the language of the statute is broad enou gh to permit McMullen’s suit. McMullen was “[a] candidate” and Sorrell was “an op posing candidate” in the 2012 election. It is unlikely that the legislature intended to limit this cause of action only to the candidate who had the most at stake at the time of the expenditure. A lthough he was not directly involved in the

1 The video is available online at http://www.youtub e.com/watch?v=KkEW_-ztNRI.3

Democratic primary campaign, McMullen certainly had an interest in any illegal expenditures made on behalf of the winning candidate because the y may have influenced the outcome of that race and thus the general election.
Furthermore, although the election has occurred, t he court does not believe this case is moot. A determination by this court that CJF made a related campaign expenditure on behalf of Sorrell could lead to civil enforcement actions aga inst both of them under 17 V.S.A. § 2806, and such actions may be brought after the election in w hich the violation occurred. Thus, there is still a live controversy. Moreover, this action falls und er the settled exception for cases “capable of repetition yet evading review.” Price v. Town of Fairlee , 2011 VT 48, ¶ 24, 190 Vt. 66. Two criteria must be satisfied to meet this exception: “the challenged action must be in its duration too short to be fully litigated prior to its cessat ion or expiration, and there must be a reasonable expectation that the same complaining party will be subjected to the same action again.” Id . The first criterion is easily met: the television adver tisement was created and aired before McMullen could file suit. With regard to the second criterio n, the growing influence of super-PACs means that McMullen could be faced with the same action a gain should he choose to run for attorney general in 2014. McMullen and the citizens of Vermo nt have a continuing interest in ensuring that Vermont’s campaign finance laws are enforced a nd that Vermont’s attorney general obeys those laws in his own campaigns.

II. Whether CJF’s Expenditures Were Related Campaign Ex penditures Under 17 V.S.A. § 2809
McMullen seeks a determination by this court that CJF’s expenditures on behalf of Sorrell were “related campaign expenditures,” makin g them subject to Vermont’s campaign contribution limits and reporting requirements.
Under the First Amendment, an independent PAC such as CJF has the right to make unlimited expenditures in support of a candidate so long as the expenditures are truly independent—that is, made in “[t]he absence of prea rrangement and coordination . . . with the candidate or his agent.” Buckley v. Valeo , 424 U.S. 1, 47 (1976); see also Citizens United v. Fed. Election Comm’n , 130 S. Ct. 876, 908–09 (2010). Limits on independ ent expenditures violate the First Amendment because the burden on core politica l speech is not justified by the government’s interest in preventing corruption and the appearance of corruption. Buckley , 424 U.S. at 45.
By contrast, limits on contributions to political candidates are constitutionally permissible because they directly address the danger of quid pr o quo arrangements and the appearance of improper influence. Id . at 26–27. PAC expenditures that are “controlled o r coordinated by the candidate or his campaign” may be limited because t hey are considered to be contributions rather than expenditures. Id . at 46–47; 17 V.S.A. § 2809(a). In Vermont, such c oordinated expenditures are called “related campaign expenditures” and are subject to Vermont’s $3,000 limit on contributions by political committees to candidates . See 17 V.S.A. § 2805, Editor’s Note—2011 (Adj. Sess.).
Under Vermont law, “any expenditure intended to pr omote the election of a specific candidate . . . if intentionally facilitated by, so licited by or approved by the candidate or the candidate’s political committee” is a related campa ign expenditure. 17 V.S.A. § 2809(c). This4

definition of a related campaign expenditure was up held as constitutional by the Second Circuit Court of Appeals in Landell v. Sorrell , 382 F.3d 91, 145 (2d Cir. 2004) (reversed in part on other grounds by Randall v. Sorrell , 548 U.S. 230 (2006)). 2

In Landell , the party challenging the statute argued that the phrase “facilitated by” was vague because it could be interpreted to mean that “any communication about a candidate’s views with a third party that then undertakes indep endent expenditures will qualify as a contribution.” Id . The court disagreed, holding that § 2809(c) was n ot unconstitutionally vague so long as it was narrowly construed to require “‘p rearrangement’ or ‘coordination’ with the candidate.” Id . (quoting Fed. Election Comm’n v. Nat’l Conservative Politica l Action Comm

., 470 U.S. 480, 498 (1985)). Under the court’s constr uction, merely sharing routine information about a candidate would not be sufficient to meet t he “facilitated by” requirement. Id . at 145–46.

Since Landell , the Vermont Secretary of State has offered furthe r guidance in identifying related campaign expenditures in an administrative rule, which states in pertinent part:
For purposes of section 2809(c) . . .
a) A campaign expenditure may be a “related campaig n expenditure” even if the candidate or the candidate’s political committee di d not have a specific intent to make an activity or expense a “related campaign exp enditure on a candidate’s behalf.” However, some knowledge of the fact, or wi llful blindness toward the fact that the action will be used in connection wit h an activity or expenditure on the candidate’s behalf is necessary.
b) “Intentionally facilitated” means for a candidat e or the candidate’s political committee to consciously, and not accidentally, hav e done an action to make the activity or expenditure possible.

c) “Solicited” means for the candidate or the candi date’s political committee to appeal or ask directly or by an intermediary or by any other means, procure the activity.
d) “Approved” means for the candidate or the candid ate’s political committee to have consciously, and not accidentally, taken any p rior action or inaction that indicates permission or approval. Simply knowing th at an activity or expenditure is taking place does not, alone, constitute approva l.
Vt. Sec’y of State, Admin. Rule 2000-1 § 2 (2012), available at http://vermontelections.org/elections1/2012%20CF%20Guide%204.12.1 2.pdf. The parties agree that the rule governs this case.
McMullen argues that Governor Dean, acting as an a gent of the Sorrell campaign, narrated the television advertisement and consulted with CJF about how and where it should be

2 The Fourth Circuit stated recently that the Randall Court found § 2809(c) to be “suspect.” Preston v. Leake , 660 F.3d 726, 739 (4th Cir. 2011). However, its citatio ns to Randall do not support that characterization, and Randall did not directly address the constitutionality of § 280 9(c).5

placed in the Vermont media market. In other words, he argues that the Sorrell campaign, acting through Dean, facilitated, solicited, and approved CJF’s expenditures on Sorrell’s behalf.
“‘Agency is the fiduciary relation which results f rom the manifestation of consent by one person to another that the other shall act on his b ehalf and subject to his control, and consent by the other so to act.’” Springfield Hydroelectric Co. v. Copp , 172 Vt. 311, 317 (2001) (quoting Restatement (Second) of Agency § 1 (1958)). Agency is a question of fact, and the burden of proving an agency relationship is on the party asse rting its existence. Westinghouse Elec. Supply Co. v. B.L. Allen, Inc. , 138 Vt. 84, 94 (1980). “The fact that one assumes to act for another is not enough to establish an agency.” Scott v. Bradford Nat’l Bank , 107 Vt. 226, 232 (1935).
Here, McMullen has produced no evidence showing th at the Sorrell campaign consented to Dean acting on its behalf or that the Sorrell ca mpaign had any control over Dean’s actions in connection with the television advertisement produc ed by CJF. There is no evidence that Dean was compensated for his actions on Sorrell’s behalf , or that confidential information was shared with Dean and CJF in order to create or target the television advertisement. To find an agency relationship would require this court to rely on me re inferences, which it declines to do. Dean assisted CJF to create a television advertisement f or a friend and former colleague whose campaign he endorsed, but that does not prove that he was acting as an agent of Sorrell or his campaign. Dean is an experienced politician who won five Vermont elections. He is certainly capable of acting independently to assist CJF with creating a fairly generic positive television advertisement and targeting its use in Vermont mark ets. The fact that Sorrell paid for the radio advertisement narrated by Dean is suggestive that S orrell also may have been somehow involved in facilitating the CJF television advertisement na rrated by Dean, but it is not evidence that such coordination actually took place.
The evidence presented shows that Dean and Sorrell are friends and that Dean endorsed Sorrell in various media during the 2012 Democratic primary race. However, it does not follow that Dean was an agent of Sorrell’s campaign. Nor d oes this evidence show that Sorrell or his campaign facilitated, solicited, or approved of CJF ’s advertisement. Indeed, there is no evidence that Sorrell or his campaign even knew about the te levision advertisement prior to its first airdate.
This case is distinguishable from State v. Republican Governors Association , cited by both parties. In that case, the court held that the State had pleaded sufficient facts to avoid dismissal of its claim that Republican gubernatoria l candidate Brian Dubie’s campaign facilitated expenditures by the Republican Governors Associatio n (RGA) during the November 2010 election. State v. Republican Govs. Assoc. , No. 762-12-11 Wncv (Vt. Super. Ct. Sep. 26, 2012) (Crawford, J.). The State alleged that the Dubie ca mpaign used its confidential polling data to inform its campaign decisions, then shared the conf idential polling data with the RGA, allowing the RGA to spend its money based on the same confid ential information. The court held that, if
proven , this would amount to facilitation even under the narrower standard defined by the Second Circuit, which held that there must be a sho wing of prearrangement or coordination to prove that a candidate facilitated an expenditure. Id . at 5–6 (citing Landell v. Sorrell , 382 F.3d 91, 145 (2d Cir. 2004)). By contrast, this case is well past the motion to dismiss stage and there is no evidence of any confidential information bein g exchanged. The information and images used in the advertisement would have been available from other sources.6

The court notes that the press coverage of the CJ F television advertisement, which McMullen submitted with his motion for determinatio n but which was not offered at the evidentiary hearing, contains nothing but denials b y Sorrell and Dean that they coordinated on the CJF expenditures or strategized together regard ing Sorrell’s campaign. According to one article, Dean made suggestions to CJF regarding whe re they should spend their money on television and direct mail. Even if true, this is t he type of routine information that the Landell court stated was insufficient to prove coordination . See Landell , 382 F.3d at 145–46.

CONCLUSION
Because McMullen has failed to prove that Dean act ed as an agent of the Sorrell campaign, or that Sorrell or his campaign intention ally facilitated, solicited, or approved the CJF expenditures, this court must deny McMullen’s petit ion for a determination and dismiss his petition with prejudice.

SO ORDERED this 28 th day of January, 2013.

____________________________________ Robert A. Mello, Superior Judge