Sorrell: A different kind of election

MANCHESTER - E.Marc Costanzo. Sandy Ward. Larry Drown. Dennis Carver, twice. Karen Kerin. Aaron Michael Toscano.

Remember them? Some will, many won't. They are the candidates William H. Sorrell, 65, has defeated in seven election cycles since 1998, the first time he ran for the office of Attorney General of Vermont. He was originally appointed to the office in 1997, by then-Gov. Howard Dean. He now holds the record for longest serving attorney general in the history of the state.

Not only has he seen off his opponents every election season, he's done so handily, by whopping margins. His smallest share of the vote came in 2004, when he polled just under 58 percent. Typically, his margins have been the stuff of political dreams.

This year it's a little different.

In Vermont, Sorrell's toughest test won't likely be in the November general election, but rather in the Democratic Party primary, where he is facing a stern challenge this year from Chittenden County States Attorney TJ Donovan. The winner of the primary, which will be held on Aug. 28, will in all likelihood face off against Republican Jack McMullen in November. But the primary battle between Sorrell and Donovan has emerged as the hottest contests of the summer in the run up to the August primary balloting, and has Sorrell out on the political hustings far more often and actively than was the case in his seven previous campaigns.

So far, though, he said in a recent interview at The Journal, he has found it interesting and rewarding.

"Come Aug. 29, the day after the primary, however it turns out, I will have preferred to have had this experience than not," he said. In any event, the primary challenge from Donovan has raised the profile of the attorney general's office and informed voters about what the office does, he said.

As the state's chief law enforcement officer, the attorney general is responsible for overseeing compliance and bringing legal actions in such diverse areas as health and safety, environmental protection civil rights and consumer protection, among others. And in Vermont, that means doing so with one of the smallest staffs in the country, he said, compared to other state's legal departments.

His approach is pro-active, but not to the point of abusing the office, he said.

"There are weighty responsibilities," he said. "If I played fast and loose with the powers of the office a lot of people could feel wronged by that." That attitude didn't stop the free enterprise and limited government-leaning Competitive Enterprise Institute, a nonprofit public policy think tank, from blasting him in 2010 as the nation's sixth worst attorney general, or more recently, from Donovan's supporters, whose mantra has been that it's time for a change.

One visible issue that has popped up between Sorrell and Donovan, who has secured some high profile endorsements from some of the state's biggest labor unions, such as the Vermont State Employees Association, the Vermont Troopers Association and the Professional Firefighters of Vermont, is over decriminalizing possession of small quantities of marijuana. The difference between the two is really more of nuance than substance, Sorrell said. "The nuance for me, as the state's chief law enforcement officer, is to just make clear that, no matter what the Vermont Legislature does, it will remain a violation of federal law, and Vermonters shouldn't think that because of what the state legislature has done, that all of a sudden, essentially marijuana has been legalized in the state and you can do what you want," he said.

He supports a "parking ticket" approach to the question, he said.

In effect, the state has already decriminalized possession of small quantities of marijuana, since relatively few people are sent to prison or severely punishd for such an offense. Personally, he's in favor of decriminalization, but is concerned about sending the wrong message, he said.

But those who have been paying closer attention to Sorrell's track record while attorney general may well give more weight to three cases he litigated that resulted in judicial decisions that went against the state. One of them is the case involving Entergy Corp. and its desire to secure an extension of its operating license for the Vermont Yankee nuclear plant, and is still on appeal. Two others were ones involving campaign finance (Randall vs. Sorrell) and so-called data mining (IMS Health vs. Sorrell).

In the Randall case, which the U.S. Supreme Court decided in 2006, the issue was a campaign finance law passed by the Vermont Legislature in 1997 which set strict limits on expenditures by candidates for political office and monetary contributions from their supporters. The state was taken to court over whether or not such limits restricted First Amendment protected freedom of speech. The case worked its way up through the appeals process to the nation's highest court, where it was struck down by a 6-3 margin, and the Court invalidated the law's spending limits. But Sorrell pointed out that the state had prevailed at the trial or district court level, won again at the appellate level, before losing in the Supreme Court. And it wasn't as if he hadn't given the lawmakers fair warning, he said.

"We told the legislature when they were considering the law that you're pushing the envelope here," he said. "No other state has had limits on expenditures on campaigns - none. And you're (also) significantly limiting contributions to campaigns." In the IMS Health case involving data mining, the state won at the district court level before losing in appeals court by a 2-1 margin, and then getting reversed by the Supreme Court in 2011, again by a 6-3 vote.

In 2007 Vermont lawmakers passed an Act which prohibited records of physician's prescribing practices from being sold for marketing purposes without the doctor's consent. Firms which analyze such data for marketing purposes - data miners - and pharmaceutical manufacturers objected, saying the law infringed on their First Amendment rights.

Incidentally, this was the case that attracted a certain amount of media attention not only for the issues involved in the case, but because the immediate case the Court heard before IMS Health vs. Sorrell was the one involving the estate of the Anna Nicole Smith, the former Playboy Playmate and model who had married a wealthy - and elderly - Texas oil tycoon.

Again, Sorrell said he had alerted lawmakers that they were pushing the envelop and the law could be overturned later.

But if lawmakers shrank from passing laws they thought were in the public interest and attorney generals were not willing to litigate on their behalf, many worthwhile pieces of legislation would never be passed, he said.

About 90 percent of the state's laws that have been attacked in court have been upheld during his tenure, and while $3.1 million has been spent on attorney's fees, more than $40 million has been awarded to the state in legal settlements in the last fiscal year alone, he said.

"If you want to say I'm a spendthrift and wasting taxpayer's money by losing a couple of cases over the last 15 years, well, you're entitled to that opinion, but if you put all the money that came in the door on one side of the scale and all the money going out on the other, it wouldn't be a close call," he said.

The Entergy case, which grabbed the spotlight in the past year, has now been appealed to the appelate court. Sorrell defends his prosecution of the case, arguing that U.S. District Judge J. Garvin Murtha got it wrong when he found that the state had based its decision to not allow an extension of its operating license on radiological safety concerns. That is a determination for federal, not state, authorities, according to Murtha's opinion. The lawyers representing Entergy cherry-picked the legislative record to persuade Murtha that the motivating force for their action was safety, instead of the plant's reliability, Sorrell said, and Murtha, wrongly in Sorrell's view, went with that.

"What we're saying in the Entergy case is that there are certain legitimate state concerns that the NRC (Nuclear Regulatory Commission) has acknowledged - like reliability," he said. "The question is when you vote to give the Legislature and the Public Service Board a real say say in the re-licensing of the plant, then we're entitled to the benefit of the doubt that we're motivated by legal concerns as opposed to impermissable concerns." For more information about Sorrell's positions, visit his web site at


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