Vermont Democratic Party v. Republican Governor’s Assoc., No. S1285-
04 Cnc (Norton, J., Oct. 29, 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
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STATE OF VERMONT                                     SUPERIOR COURT
Chittenden County, ss.:                          Docket No. S1285-04 CnC




VERMONT DEMOCRATIC PARTY,
PETER CLAVELLE

v.

REPUBLICAN GOVERNORS’
ASSOCIATION




                                 ENTRY

       Both the Vermont Democrats and the Republican Governors have
requested further clarification of this court’s October 28, 2004 injunctive
order against the Republican Governors’ Association. While this order
stands on its own, the court will attempt to shed the light of additional
meaning for the sake of the parties in the time remaining before the
election. In the court’s previous order, the Republican Governors were
ordered to “withdraw or cancel all future campaign advertising in Vermont
to the extent it may do so without financial detriment.” This simply means
that the Republican Governors must withdraw or cancel all future
advertising, except those advertisements where the money cannot be
refunded. That does not include incidental or de minimus expenses such as
non-refundable “vendor” fees or phone calls.

        This is consistent with the Attorney General’s position that the
Republican Governors should not be punished by the complete loss of
monies spent on advertising arrangements made prior to the October 22d
letter from the Attorney General. This is also consistent with the testimony
of Mark Michaud, the communications director for the state Democratic
Party, who said refunds were a common practice for pulled ads. The
affidavit of Michael Powers, for example, shows WCAX-TV accepts
cancellation of prepaid advertising with a refund of the cost of broadcast
time not used.

      The October 28th order also carries with it the implied duty to act in
good faith. As the Attorney General points out in his response:

       Indeed, the Republican Governors Association should already have
       been taking steps to comply with the Order, and any failure to take
       such actions should not be protected by the filing of a motion to
       clarify. . . . While WFFF-TV would have required a cancellation
       notice at the close of business yesterday to cancel advertisements
       for Monday, November 1, 2004, it also indicated an ability to be
       flexible in this regard concerning the advertisements of the
       Republican Governors Association.

State of Vermont’s Response to Request for Clarification of Injunction
Order, S1285-04 CnC (Oct. 29, 2004).

       The court expects that the Republican Governors, an association
made up of the chief executives sworn to uphold the law, would have and
will continue to comply with this legal injunction to the fullest extent of its
power. The court is also certain that the Attorney General will take any
further action necessary to ensure compliance.
      The October 28, 2004 preliminary injunction order against the
Republican Governors’ Association shall continue and shall be
implemented consistent with this entry.

      Dated at Burlington, Vermont________________, 2004.




                                            ________________________
                                                               Judge
