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
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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

       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
