Vermont Democratic Party v. Republican Governor’s Assoc., No. S1285-

04 CnC (Norton, J., Oct. 26, 2004) 

[The text of this Vermont trial court opinion is unofficial. It has been 

reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is 

not guaranteed.] 

STATE OF VERMONT SUPERIOR COURT 

Chittenden County, ss.: Docket No. S1285-04 CnC 

VERMONT DEMOCRATIC PARTY, 

PETER CLAVELLE 

 

v. 

REPUBLICAN GOVERNORS ASSOCIATION 

 

ENTRY 

 Democratic Candidate for Governor Peter Clavelle and the Vermont 

Democratic Party seek a temporary restraining order to enjoin the 

Republican Governors’ Association from airing further television and radio 

advertisements in praise of incumbent Republican Governor James 

Douglas. The Republican Governors is a Washington D.C. based group 

that works “to assist in the election of Republican gubernatorial candidates 
and the re-election of incumbent Republican Governors.” Clavelle 

argues—and the Vermont Attorney General agrees—that the Republican 

Governors is a political committee under the terms of 17 V.S.A. § 2801(4). 

Clavelle argues that this status puts them in violation of Vermont’s 

Campaign Finance laws concerning contributions to political committees 

from a single source and requiring political committees to file disclosures 

with the secretary of state. 17 V.S.A. §§ 2805(a), 2811, 2831. By using 

unregulated funds and acting outside the campaign finance laws to purchase 

political advertisements, Clavelle urges the court to conclude that the 

Republican Governors have unbalanced the “level playing field as 

envisioned by the Vermont Campaign Finance Act”; thereby hurting him 

and the Democrats’ campaign for governor, which gives him the right to 

injunctive relief. 

 Our Supreme Court has advised trial court judges that injunctive 

relief is an extraordinary remedy not routinely granted unless the right to 

relief is clear. Committee to Save the Bishop’s House v. Medical Hospital 

of Vermont, 136 Vt. 213, 218 (1978). A temporary restraining order will 

only be granted “if it clearly appears from specific facts shown by affidavit 

. . . that immediate and irreparable injury, loss, or damage will result to the 

applicant before the adverse party . . . can be heard in opposition.” V.R.C. 

P. 65. The phrase “immediate and irreparable injury” is not explicitly 

defined by the rule, but our Court and most federal courts have agreed that 

standard includes at least four factors: 

$ The significance of the threat of irreparable harm to plaintiff if the 

injunction is not granted; 

$ The state of the balance between this harm and the injury that 

granting the injunction would inflict on defendant;

$ The probability that plaintiff will succeed on the merits; and 
$ The public interest. 

In re J.G. Juvenile, 160 Vt. 250, 255 n.2 (1993); 11A C. Wright, et al., 

Federal Practice and Procedure § 2948, at 131–33 (1995) (listing courts that 

have adopted the four factors for TROs). In this case, the dispositive issue 

is whether Clavelle and the Vermont Democrats can succeed on the merits 

of this claim. Their filings have not demonstrated that they will probably 

succeed on the merits because it fails to consider whether they have a right 

of action under the Vermont Campaign Finance Reform Act. 

 The right to injunctive relief under the Vermont Campaign Finance 

laws is set out in 17 V.S.A. § 2806, under the heading Penalties. 

Specifically, § 2806(c) provides for injunctive relief as follows: “In 

addition to the other penalties herein provided, a state’s attorney or the 

attorney general may institute any appropriate action, injunction of other 

proceeding to prevent, restrain, correct or abate any violation of this 

chapter.” In no other section does the law allow a private right of action for 

candidate grievances or even private voter complaints. Thus to the extent 

that this section and the Campaign Finance law create a right of action for 

injunctive relief, the right is limited to law enforcement officials who will 

investigate and then file the appropriate action.1

 This conclusion is 

supported by the other two penalty sections of § 2806, (a) and (b), imposing 

fines and imprisonment for violations, which require public, rather than 

private, prosecution. See State v. Int’l Collection Serv., 156 Vt. 540, 542 

(1991) (“Although our overall aim is to give effect to the intent of the 

legislature, we must look first to the plain meaning of the statutory 

 

1

 As compared to the minimal factual requirements to commence a private 

right of action under V.R.C.P. 8; Lane v. Town of Grafton, 166 Vt. 148, 152–53 

(1997). 
wording.”). 

 This specific limitation of injunctive relief to investigative 

prosecutors indicates a legislative intent to allow court intervention—such 

as the temporary restraining order sought by plaintiffs here—only when 

requested by those public officers or to effectuate their clear position—such 

as a clear cease and desist letter. To reason otherwise, would implicate the 

courts at the request of contestants or their supporters in the political 

process of an election, which is not an appropriate or desirable exercise of 

the court’s power under our governmental structure. In effect, it would 

transform Vermont’s Campaign Finance laws from a shield protecting 

voters to a sword for opposing candidates. 

 As to whether Clavelle and the Vermont Democrats have an implied 

private right to injunctive relief under the Vermont Campaign Finance 

laws, the question is one of legislative intent. Cort v. Ash, 422 U.S. 66, 78 

(1975); Rowe v. Brown, 157 Vt. 373, 378 (1991); Cronin v. State, 148 Vt. 

252, 255 n.2 (1987) (applying multi-factor analyses to determine if 

legislatures intended private rights of action). To determine legislative 

intent in these cases, the Vermont Supreme Court has considered: (1) 

whether the plaintiff is one of a class for whose special benefit the statute 

was enacted; (2) whether there is an indication from legislative intent, 

explicit or implicit, that such a right of action should exist, and (3) whether 

it is consistent with the underlying purposes of statute. See Cort, 422 U.S. 

at 78. 

 Here, the Campaign Finance law places widespread restrictions on 

fund-raising and spending in Vermont campaigns. Its rules apply to 

candidates for state representative, state senator, governor, lieutenant 

governor, secretary of state, state treasurer, auditor of accounts, and 
attorney general, as well as to political committees and political parties. 17 

V.S.A. §§ 2805(a), 2805a. The law also applies to every contributor to a 

political campaign, which includes everyone under the jurisdiction of 

Vermont law. § 2805(b). Finally, the law creates filing requirements for 

candidates for county offices, § 2821, and candidates for local offices, § 

2822. Given the broad-ranging nature of this Act, it is difficult to conceive 

how the legislature could have intended it to benefit just single candidates 

or political parties. See Cronin, 148 Vt. at 255 (wide scope of statute 

contradicts individual plaintiff’s argument that the statute was promulgated 

for his benefit). 

 This is further supported by the legislative findings included in the 

Campaign Finance Reform Act. Landell v. Sorrell, 382 F.3d 91, 99–102 

(2004); W. Russell, A Brief History of Campaign Finance Reform in 

Vermont, 27 Vt. L. Rev. 699, 714–15 (2003). In particular two findings 

specifically address the concerns the legislature had about outside 

contributors and “political committees”: 

(8) Limiting large contributions, particularly from out of state, and 

limiting campaign expenditures will encourage direct and small 

group contact between candidates and the electorate and will 

encourage the personal involvement of a large number of citizens 

in campaigns, both of which are crucial to public confidence and 

the robust debate of ideas; 

(9) Large contributions and large expenditures by persons or 

committees, other than the candidate and particularly from out of 

state, reduce public confidence in the electoral process and 

increase the appearance that candidates and elected officials will 

not act in the best interests of Vermont citizens . . .

H.28, § 1, Legislative Findings and Intent, as passed by the House on April 

9, 1997, Journal of the Vermont House 585–87 (1997). In these findings, 
the emphasis is on Vermont citizens and public confidence, not candidates 

or political parties. The other thirteen legislative findings demonstrate that 

the legislature was concerned with public confidence in the electoral 

process and with public access to elected officials and also support the 

conclusion that their intent was to protect the broader population rather than 

any individual candidate or political party. Furthermore, considering the 

vast amount of time and energy that the General Assembly devoted to 

crafting this legislation, Russell, supra, at 710–18, the court has no doubt 

that if the General Assembly wanted to create private rights of action in 

order to enforce the Act, it would have expressly done so. 

 When combined with the prior discussion regarding the limited, but 

explicit, statutory right for injunctive relief through an investigative 

prosecutor, the inference arises that the legislature did not intend to create a 

private right of action. To this end, section 2806 resembles the statutory 

enforcement schemes in Cronin and Wilder in its broad scope, alternative 

relief through agency action, and clear legislative scheme. See Cronin, 148 

Vt. at 255; Wilder v. Aetna Life & Cas. Ins. Co., 140 Vt. 16, 19 (1981). In 

both of those cases, the Vermont Supreme Court inferred that the 

legislature did not intend on providing private rights of action. Accordingly, 

this court makes the same inference. 

 Therefore, because the court finds no legislative intent to create an 

implied private right of action, and because no express right of action exists 

in the Campaign Finance Reform Act, the plaintiffs are not the proper 

parties to bring this motion before the court. 

 Finally, plaintiffs’ reliance on the New Hampshire case of Lynch for 

New Hampshire v. Republican Governors’ Association, No. 04-S-___, 
Hillsborough County (Conboy, J. Oct. 11, 2004), is sound and supportive 

of this decision. In that case, the Attorney General for the State of New 

Hampshire issued a cease and desist order against the Republican 

Governors’ Association to stop all political activities by it within the state 

of New Hampshire, which the Republican Governors refused to obey, and 

the state obtained a court order enforcing the attorney general’s directive. 

This is the process which is consistent with our procedure outlined earlier. 

 This emergency motion for injunctive relief was brought to the 

court’s attention on Monday, Oct.25, 2004. Today the court learned the 

Vermont Attorney General determined the Republican Governors had 

violated the law by the series of ads when it was not a political party but 

failed to register with the Vermont Secretary of State’s office. However, 

the Attorney General declined to seek court enforcement because the 

defendant was mistakenly advised it was not necessary to file. Since the 

attorney general could not refute this defense, and the defendant relied 

reasonably on the election office’s determination, prosecution was not 

warranted. 

 While the Vermont statute appears to preclude an independent, 

private right of action, it is unclear whether the statute also terminates any 

private right of action in conjunction with law enforcement. In the Lynch

case, for example, the candidate sought injunctive relief from the 

Republican Governors based on the New Hampshire Attorney General’s 

clear position of “cease and desist.” 

 At approximately 2pm on October 26th, candidate Clavelle and the 

Vermont Democrats presented additional evidence that the Vermont 

Attorney General has warned the Republican Governors not to purchase 
additional political advertisements after October 25th and that the 

Republican Governors have continued to purchase advertisements on 

WVNY in Burlington. If true, there is an inference that this letter to the 

Republican Governors may be a “cease and desist” akin to the Lynch case. 

This does not answer the question of whether there is enough to create a 

private right to injunctive relief in candidate Clavelle and the Vermont 

Democrats. Yet, given the imminent harm posed to Clavelle by the 

Republican Governors’ apparent decision to continue airing advertisements 

in spite of the Attorney General’s position, there is enough evidence to 

require an emergency hearing for a preliminary injunction. 

 This shall be held at Chittenden Superior Court with both parties and 

the Attorney General or his representative. At that time, the court shall hear 

arguments as to whether a preliminary injunction is appropriate. The 

Republican Governors are ordered to provide a written copy of the 

advertisement or advertisements scheduled for showing on WVNY and 

shall be prepared to show that these are not additional expenditures in 

Vermont beyond those reported in its October 19, 2004 Notice of Mass 

Media Activities Report to the Secretary of State, as set forth in the 

Attorney General’s October 22d letter. 

 The plaintiffs’ motion for a temporary restraining order is DENIED. 

An emergency hearing for the parties shall be scheduled for Wednesday, 

October 27, 2004 at 1 pm at Chittenden Superior Court. The clerk is 

directed to give immediate notice to the parties as well as a copy of this 

order. 

 Dated at Burlington, Vermont, _________________, 2004. 
________________________ 

Judge