Thursday, February 23, 2012

Vermont's Attorney General: Guest Post by Vermont Senator Benning

2/8/2012

An Open Letter To Attorney General Sorrell


Dear Mr. Sorrel:

For the past twenty-eight years I have represented well over three thousand clients as a trial attorney in the Northeast Kingdom. In each of those cases I have had to examine a set of facts and assess how the law would be applied to those facts. This past weekend I read the decision of Judge Murtha in the Vermont Yankee case. Last night on the Channel 3 news I was alarmed to hear you remark that Judge Murtha had made the wrong decision. Respectfully, I must disagree. I'm writing to urge you to reconsider any thought of going forward with an appeal.

The facts of the case are quite clear. For over fifty pages Judge Murtha identifies quotation after quotation of state senators using safety as the basis for their desire to see Vermont Yankee close. Sprinkled throughout the decision are repeated warnings from various witnesses that safety concerns were not within the purview of state concern. Although there may exist other reasons why some senators voted the way they did, the facts found are iron-clad that safety concerns were the foundation for the ultimate vote. An appellate court will give great deference to the record below. The record below here is simply not in Vermont's favor.

The law is also quite clear. Under the Atomic Energy Act, safety of a nuclear power plant falls squarely within the purview of the federal government. State law does not trump federal law. That constitutional mandate was not just decided in a federal courthouse; it was cast in stone at Appomattox Courthouse back in 1865. An appellate court cannot change that. The law is simply not on Vermont's side.

Judge Murtha's decision has thus left Vermont with an insurmountable obstacle. I'm writing because I fear the decision to appeal may be clouded by the emotions of politics. With neither facts nor law on a client's side, I believe we lawyers have a duty to rise above emotions and explain why pursuit of a legal claim is not going to produce the remedy desired. While the decision to appeal is ultimately yours, it will be up to my legislative colleagues and I to finance that decision. At a time when (among other things) we are struggling to fund a state hospital system for our most vulnerable citizens, I submit we should spend no more money on this case.

Sincerely,
Joe Benning
State Senator
Caledonia-Orange District


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This letter was also printed in the Caledonian Record. Why the illustration at the head of the post? Senator Benning was a charter member of the Paths Around Lyndonville (PAL) group. They organized a pedestrian walking path along the banks of the Passumpsic River. You can read more about Senator Benning here.

People ask me about my opinion of the Attorney General's decision to appeal. I could definitely write blogs about this, but I decided to print these guest posts instead. I think Vermont legislators such as Tom Koch (guest post yesterday) and Joe Benning (today) do a wonderful job of putting this issue in Vermont context. I couldn't do better and would probably do worse.

I must also include a link to today's editorial in my hometown paper: The Sorrel Record: Questions Mount Along with Losses. This editorial supports my conclusions that Vermont sometimes cares more for "state's rights" than for the rights of its citizens. I listed similar concerns in my blog post Citizen's Rights, State's Rights, and Vermont.

1 comment:

Jeff Schmidt said...

The sad truth, most likely, is that as long as enough Vermonters support the State's legal challenges, then it doesn't, probably, matter that the AG is likely to lose - if the people want to see it through, they'll pay for it.

In such situation, people who would otherwise be concerned about fiscal responsibility may well adopt a "money is no object" mentality, because they feel the issue is "too important".

I wish you the best of luck, but I have little reason to believe that Vermonters are going to rise up en masse to demand the appeal be dropped to save money. Maybe, but I doubt it.