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

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

[The text of this Vermont trial court opinion is un official. It has been reformatted from the original. 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 Chittenden County, ss.: Docket No. S1285-04 CnC

VERMONT DEMOCRATIC PARTY,

PETER CLAVELLE

v.

REPUBLICAN GOVERNORS ASSOCIATION

ENTRY

Democratic Candidate for Governor Peter Clavelle a nd the Vermont Democratic Party seek a temporary restraining order to enjoin the Republican Governors’ Association from airing furth er television and radio advertisements in praise of incumbent Republican Go vernor James Douglas. The Republican Governors is a Washington D.C. based group that works “to assist in the election of Republican gubernatorial candidatesand the re-election of incumbent Republican Governo rs.” 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 viola tion of Vermont’s Campaign Finance laws concerning contributions to p olitical committees from a single source and requiring political commit tees 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 f inance laws to purchase political advertisements, Clavelle urges the court to conclude that the Republican Governors have unbalanced the “level pla ying field as envisioned by the Vermont Campaign Finance Act”; th ereby hurting him and the Democrats’ campaign for governor, which giv es him the right to injunctive relief.

Our Supreme Court has advised trial court judges t hat injunctive relief is an extraordinary remedy not routinely gra nted unless the right to relief is clear. Committee to Save the Bishop’s Hou se v. Medical Hospital

of Vermont , 136 Vt. 213, 218 (1978). A temporary restraining order will only be granted “if it clearly appears from specifi c facts shown by affidavit . . . that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party . . . can be hea rd in opposition.” V.R.C. P. 65. The phrase “immediate and irreparable injur y” 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 (1 995) (listing courts that have adopted the four factors for TROs). In this c ase, the dispositive issue

is whether Clavelle and the Vermont Democrats can s ucceed 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 C ampaign Finance laws is set out in 17 V.S.A. § 2806, under the head ing Penalties. Specifically, § 2806(c) provides for injunctive rel ief as follows: “In addition to the other penalties herein provided, a state’s attorney or the attorney general may institute any appropriate acti on, injunction of other proceeding to prevent, restrain, correct or abate a ny violation of this chapter.” In no other section does the law allow a private right of action for candidate grievances or even private voter complain ts. Thus to the extent that this section and the Campaign Finance law crea te a right of action for injunctive relief, the right is limited to law enfo rcement officials who will investigate and then file the appropriate action. 1 This conclusion is supported by the other two penalty sections of § 28 06, (a) and (b), imposing fines and imprisonment for violations, which requir e public, rather than private, prosecution. See State v. Int’l Collectio n 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 meanin g 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 G rafton , 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 plaint iffs here—only when requested by those public officers or to effectuate their clear position—such

as a clear cease and desist letter. To reason othe rwise, would implicate the courts at the request of contestants or their suppo rters 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 sh ield protecting voters to a sword for opposing candidates.

As to whether Clavelle and the Vermont Democrats h ave an implied private right to injunctive relief under the Vermon t Campaign Finance laws, the question is one of legislative intent. C ort 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). T o determine legislative intent in these cases, the Vermont Supreme Court ha s considered: (1) whether the plaintiff is one of a class for whose s pecial benefit the statute was enacted; (2) whether there is an indication fro m legislative intent, explicit or implicit, that such a right of action s hould exist, and (3) whether it is consistent with the underlying purposes of st atute. See Cort , 422 U.S.

at 78.

Here, the Campaign Finance law places widespread r estrictions on fund-raising and spending in Vermont campaigns. It s rules apply to candidates for state representative, state senator, governor, lieutenant governor, secretary of state, state treasurer, audi tor of accounts, andattorney general, as well as to political committee s 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 t he jurisdiction of Vermont law. § 2805(b). Finally, the law creates filing requirements for candidates for county offices, § 2821, and candidat es for local offices, § 2822. Given the broad-ranging nature of this Act, i t is difficult to conceive how the legislature could have intended it to benef it just single candidates or political parties. See Cronin , 148 Vt. at 255 (wide scope of statute contradicts individual plaintiff’s argument that th e statute was promulgated for his benefit).

This is further supported by the legislative findi ngs included in the Campaign Finance Reform Act. Landell v. Sorrell , 382 F.3d 91, 99–102 (2004); W. Russell, A Brief History of Campaign Fin ance Reform in

Vermont , 27 Vt. L. Rev. 699, 714–15 (2003). In particular two findings specifically address the concerns the legislature h ad about outside contributors and “political committees”:

(8) Limiting large contributions, particularly from out of state, and limiting campaign expenditures will encourage direc t and small group contact between candidates and the electorate and will encourage the personal involvement of a large numbe r of citizens in campaigns, both of which are crucial to public c onfidence and the robust debate of ideas; (9) Large contributions and large expenditures by p ersons or committees, other than the candidate and particular ly from out of state, reduce public confidence in the electoral pr ocess 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 pass ed 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 conf idence, not candidates or political parties. The other thirteen legislati ve findings demonstrate that the legislature was concerned with public confidenc e in the electoral process and with public access to elected officials and also support the conclusion that their intent was to protect the bro ader population rather than any individual candidate or political party. Furth ermore, considering the vast amount of time and energy that the General Ass embly devoted to crafting this legislation, Russell, supra, at 710–1 8, the court has no doubt that if the General Assembly wanted to create priva te rights of action in order to enforce the Act, it would have expressly d one so.

When combined with the prior discussion regarding the limited, but explicit, statutory right for injunctive relief thr ough an investigative prosecutor, the inference arises that the legislatu re 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 infe rred that the legislature did not intend on providing private rig hts 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 exp ress 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), i s sound and supportive

of this decision. In that case, the Attorney Gener al for the State of New Hampshire issued a cease and desist order against t he Republican Governors’ Association to stop all political activi ties by it within the state of New Hampshire, which the Republican Governors re fused to obey, and the state obtained a court order enforcing the atto rney general’s directive. This is the process which is consistent with our pr ocedure outlined earlier.

This emergency motion for injunctive relief was br ought to the court’s attention on Monday, Oct.25, 2004. Today t he court learned the Vermont Attorney General determined the Republican Governors had violated the law by the series of ads when it was n ot a political party but failed to register with the Vermont Secretary of St ate’s office. However, the Attorney General declined to seek court enforce ment because the defendant was mistakenly advised it was not necessa ry 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 i ndependent, private right of action, it is unclear whether the statute also terminates any private right of action in conjunction with law enf orcement. In the Lynch case, for example, the candidate sought injunctive relief from the Republican Governors based on the New Hampshire Att orney General’s clear position of “cease and desist.”

At approximately 2pm on October 26th, candidate Cl avelle and the Vermont Democrats presented additional evidence tha t the Vermont Attorney General has warned the Republican Governor s not to purchaseadditional political advertisements after October 2 5th and that the

Republican Governors have continued to purchase adv ertisements on WVNY in Burlington. If true, there is an inference that this letter to the Republican Governors may be a “cease and desist” ak in 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 Cla velle and the Vermont Democrats. Yet, given the imminent harm posed to C lavelle 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 inju nction.

This shall be held at Chittenden Superior Court wi th both parties and the Attorney General or his representative. At tha t time, the court shall hear arguments as to whether a preliminary injunction is appropriate. The Republican Governors are ordered to provide a writt en copy of the

advertisement or advertisements scheduled for showi ng on WVNY and shall be prepared to show that these are not additi onal expenditures in Vermont beyond those reported in its October 19, 20 04 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 sched uled for Wednesday, October 27, 2004 at 1 pm at Chittenden Superior Cou rt. The clerk is directed to give immediate notice to the parties as well as a copy of this

order.

Dated at Burlington, Vermont, _________________, 2 004.________________________ Judge