Vermont Supreme Court Backs Both Sides in Dispute Over Legal Duties

MONTPELIER — A recent Vermont Supreme Court decision has triggered differing interpretations from two of the state’s top elected officials.

The case began more than a year ago when Vermont State Auditor Doug Hoffer, a Democrat/Progressive, filed a lawsuit against Attorney General Charity Clark, a Democrat. The dispute centered on an audit conducted by Hoffer’s office involving a Burlington tax increment financing (TIF) project. Hoffer said the attorney general’s office did not provide legal opinions he requested as part of the audit. Instead, the office directed him to other state entities for answers.

Diverging Reactions to the Decision

Both officials have claimed a form of victory in the court’s ruling. Clark called the unanimous decision a clear win for her office.

“We are pleased with the decision,” Clark said Thursday. “This is the outcome we predicted when we were first threatened by a lawsuit from the auditor, so no surprise in that respect. The Supreme Court found we had done our job and we won the case.”

Hoffer, however, focused on another part of the decision. He noted that the court affirmed his right to sue, which he argued supports the state's checks and balances.

“The ruling by the court was a split decision,” Hoffer said. “From the very beginning, the attorney general claimed we didn’t even have the authority to sue her.”

The Court's Findings

Justice Nancy Waples wrote the court’s 30-page opinion, describing the case as “an unusual dispute between Vermont’s Auditor of Accounts and Attorney General.”

Waples stated the auditor sought a declaration affirming his right to legal counsel and an order compelling the attorney general to answer two specific legal questions. The Supreme Court partially agreed, affirming that Hoffer could bring the lawsuit. However, it declined to force the attorney general to answer the specific questions, upholding an earlier ruling by Washington County Superior Court Judge Timothy Tomasi.

Waples summarized the ruling: “We affirm in part and reverse in part.”

Expert Opinion: Both Sides Have a Point

Peter Teachout, a professor at Vermont Law and Graduate School, said the court determined that the attorney general is required to give legal advice — but not required to provide legal answers.

“In this case, in fact, the Attorney General has complied with the statute because with these two questions to which it has not provided definitive answers it has provided the auditor with legal advice, and the advice is see how these other institutions interpret these terms,” Teachout said.

“I think they both are right,” he added. “The attorney general prevails in this specific case because the attorney general is not required to do what the auditor was asking the court to compel the attorney general to do, which is to provide answers to the two questions that it didn’t provide answers to.”

Teachout also noted, “The attorney general’s office did not prevail on the question of whether the attorney general can ever be compelled by a court to perform legal duties.”