Thursday, January 28, 2016

Updated: Overreach at the Attorney General's Office: Guest Post by Deborah Bucknam

I need to update this post with a link:

As described in the blog for Vermonters for a Clean Environment, the complaint about Annette Smith originated with David Blittersdorf, a wind developer in Vermont.

Overreach at the Attorney General’s office 
By Deborah T. Bucknam, Esq.

Vermont’s Attorney General has filed a complaint against Annette Smith, the activist who helps Vermonters opposed to Industrial Wind, navigate the administrative jungle that best describes the Public Service Board proceedings. I have represented folks opposed to Industrial Wind at the Public Service Board, and the hearings are overrun by lawyers—most of whom favor the government’s and the developer’s positions on Industrial Wind. Neighbors opposed to an Industrial Wind project face a phalanx of government and industry lawyers in a proceeding that is costly, time consuming and often confusing. In other words, the fix is in.

Now the Attorney General is siding with Vermont’s large law firms and big lobbyists to deprive opponents of Industrial Wind the advice of a person who knows the intricacies of the proceedings and can help those who cannot afford the high priced lawyers the developers can. And make no mistake: even though this is a preposterous charge, and will likely be thrown out, its purpose will be fulfilled: to chill anyone’s free speech rights who dares to question the powerful in Montpelier.

“Practicing law without a license” is a hoary concept left over from the medieval guilds where skilled tradesmen (including lawyers) sought to keep out competition. It was revived in the early 20th century when the newly organized Bar attempted to persuade legislatures to define the practice of law and regulate it—to the Bar’s advantage. Legislators were wary of such a regulatory scheme, so the effort waned until the Great Depression, when lawyers’ incomes plummeted, and the organized Bar launched a new effort to keep out those who were in competition for their services. This time the Bar sought the help of the Judiciary, which took up the cause. That is where it stands today: the unauthorized practice of law is regulated in large part by the Judiciary. Over the years, lawyers targeted different groups: realtors, bankers, and investment advisors, with varying success. The reason for this effort was supposedly to protect consumers from service providers who did not adhere to the strict professional conduct rules of the Bar. However, with the advent of strong consumer protection statutes and competition among providers, this “protection” is mostly a red herring.

The concept of unauthorized practice of law is so vague as to call into question its constitutionality. The practice of law is, according to the Vermont Supreme Court, "the rendering of services for another involving the use of legal knowledge or skill on his behalf -- where legal advice is required and is availed of or rendered in connection with such services.” Under that standard, hundreds of public servants in Vermont provide “legal advice”—providing information about relevant statutes, procedures and regulations---to the public and to Vermont attorneys smart enough to get the information directly from those in the know at state agencies. Yet these public servants will not –and certainly should not--be prosecuted. Only Ms. Smith, who provides similar information to those who cannot pay for those high priced lawyers is prosecuted by the Attorney General. This is precisely the constitutional issue: a rule violates the Due Process clause of the constitution because it is too vague to put the public on adequate notice as to when a violation occurs, and it opens the door for selective prosecution—exactly what has happened here. The Attorney General’s action appears to be an effort to silence opposition to Industrial Wind, and to help the large Burlington law firms and their clients to keep from having to deal with pesky Vermonters who oppose their clients’ projects.

Vermonters are being strangled by government overreach. The Attorney General’s action is a disgraceful example. If you don’t agree with the powerful and well-connected in this state, then just shut up, or you may be the target of the Government and its unlimited resources.

About the Author

Deborah Bucknam, Esq. has practiced law for 37 years, and has a private practice in St. Johnsbury, Vermont

About the post

In the last two weeks, opponents of industrial wind have rallied in Vermont, and the Vermont administration is beginning to "investigate" them.   Below is a brief summary and history.

A bill against industrial wind

Two Vermont legislators introduced a bill to ban industrial wind on our ridge lines.  They held a press conference in Montpelier on January 21: the press conference was attended by many supporters.  The supporters wore green vests and cheered for banning industrial wind.  

The Ethan Allen Institute (my Energy Education Project is part of the Institute) made made a three-minute video of the highlights of the press conference.  Ethan Allen Institute posted a blog post with the video, and Rod Adams posted about the conference at his blog: Vermonters Say They Want Industrial Wind to Go the Way of the Billboard. Both posts have lively comment streams.  I have also posted the video at the bottom of this post.

The Administration strikes back

 The press conference and the Ethan Allen Institute post took place on January 21, 2016. Perhaps purely by chance, on January 22, the Vermont Attorney General opened an investigation into whether Annette Smith, the highest-profile anti-wind advocate in Vermont, is "practicing law without a license."  This was reported in a VtDigger article by Mike Polhamus on January 23: AG's office investigating complaints against Annette Smith, anti-wind advocate.  As Polhamus points out: this is a charge with penalties left entirely to the court's discretion.  He also quotes Ms. Smith: "I believe this has the potential to shut down my organization of 16 years. It clearly falls under the definition of harassment.”

There are (at this writing) 147 comments on the Digger post. The vast majority are in support of Annette Smith. An early comment was written by Peter Galbraith, a former Senator in Vermont (and a Democrat). A short quote: "Annette Smith is a person of integrity who has helped the weaker party in what would otherwise be a very uneven contest. This investigation will have a chilling effect on all citizen advocates."

This post:

I wanted to write something really powerful about this issue: about the environment, about freedom of speech, about government harassment of dissenting views, about crony capitalism.  Then, to my great relief, I received this press release from Deborah Bucknam in my email inbox.  I have never met Ms. Bucknam, but she said it all, much better than I could.  Thank you, Ms. Bucknam. 

 Video by Ethan Allen Institute

1 comment:

Unknown said...

Now that I am retired I will pass along some advice from my father. He told me to pay attention during classes on the Uniform Code of Military justice because officers do not. Second, when it comes to bullies; the bigger they are the harder they fall.

I only had one fight in school. On the second day of school, the center of the football team go his clock cleaned by the smallest kid school, me. It was not a fair fight. Apparently, he did not think chess club material would fight back. I had the element of surprise.

Some members of the bar are bullies. The bigger they are the harder they fall. I have been threatened with jail in an effort to extort money by the attorney general of California and a county prosecutor. Unfortunately, for these legal bullies they had provided me evidence.

I asked two questions, what is the phone number of the bar association and the name a federal prosecutor to help me file a compliant. I offered one observation. What a great news story it would make. Both times I said I would not due anything for 15 minutes and both times they responded as professionals.

This case appears to a case of free speech only being protected if it politically correct. Good luck!