Category Archives: Law

Phil Scott Bends the Knee

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It’s been obvious since January (if not before) that Gov. Phil Scott has adopted a very different tone when it comes to That Man in the White House. It used to be that Scott felt no qualms about openly criticizing Trump. Lately, his approach has been decidedly more circumspect. I used to chalk this up to a new realpolitik in which the November election gave him many more Republican allies in the Legislature, most of whom are avid Trumpers. In response, Scott had to be more careful.

Now? I think Phil Scott is bending the knee, taking the coward’s way out, keeping his head down, sacrificing principle in favor of expediency. He doesn’t want to join the likes of Harvard, UPenn, immigrants, transgender folk, Stephen Colbert, the Washington Commanders, and Rosie O’Donnell in Trump’s crosshairs.

Two points. First, Scott’s transportation secretary refusing to cooperate with Attorney General Charity Clark’s lawsuit over cutbacks in federal funding for electric vehicle infrastructure. Second, his staunch defense of state cooperation with Trump’s immigration regime despite the fact that his own Department of Corrections is having a hard time dealing with the feds’ extraconstitutional thuggery.

Also this: A carefully worded statement from Clark that hints at a broader Trump-avoidant stance by the Scott administration.

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About Los Angeles and Our Growing Police State

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I’m departing from my usual focus on Vermont politics because the scenes from Trump’s Battle Los Angeles cosplay adventure* in MacArthur Park really hit me, and made the Big Brutalist Bill’s funding of a massive immigration enforcement regime feel like the most fascistic element of a broadly fascist administration. I was in Los Angeles just a couple of months ago. One of my stops was MacArthur Park. And to see heavily-armed stormtroopers marching, for no particular reason, through a place I had recently visited was a real smack in the face.

*The movie, which features a gritty band of soldiers fighting an alien invasion, appears to be the narrative inspiration for Trump’s florid fantasy of an L.A. under attack. Looking at clips from the film makes me think Stephen Miller probably jerks off to it late at night after he can’t get it up in bed with his wife:

Ooh yeah, that’s the stuff.

I went to L.A. because Loyal Spouse was attending a conference there, so I could stay in the hotel room for free and bomb around the city. It was a fascinating, enlightening, fun, and occasionally frustrating experience.

For purposes of this blog, I won’t cover the Broad Museum, the La Brea Tar Pits, a great bike trail along the L.A. beaches, the Griffith Observatory, or a wonderful store in Los Feliz called Wacko that specializes in fringe culture of all kinds. I will write about how refreshing it was to be in a truly diverse space where I was often in the minority and I never quite knew which language I might hear on the street, on the train, or at a restaurant.

Also how I never felt personally in danger, even though there was a LOT of poverty and homelessness. I walked along streets lined with tents, tarps, and other ad hoc shelters. There were plenty of sketchy characters on the streets and on mass transit. I kept my eyes open and my wallet secured, but even so I liked the overall experience. There are things in big cities — food, retail, museums, parks, botanical gardens, etc. — that you can’t find anywhere else. I don’t want to live in a big city, but I really like visiting them.

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Time for the AG to Take Center Stage

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Charity Clark is in a unique position. At a time when our democracy and our system of government are under threat from The World’s Biggest Golf Cheat, she is Vermont’s chief legal advocate. More so than, say, our other Democratic statewides, she has the authority to take action. And the responsibility.

So far, she has followed the Bill Sorrell playbook: Signing on to 13 lawsuits against the Trump administration filed by coalitions of Democratic attorneys general. She also gave a nice speech at Saturday’s lawyers’ rally in Burlington. (In which she oddly referred to the rule of law and the separation of powers as “kind of one of our major brands” as if the Constitution is a consumer product.) That’s all fine, but it’s kind of the least she could do.

Stepping forward on her own would take some courage, but would also be the smartest political move she could make. Setting aside right and wrong for just a moment and focusing on the politics, which is after all the remit of this popstand, Clark is one of a number of top-tier Democrats presumed to be angling for higher office. But she appears to lag behind Treasurer Mike Pieciak (but then, don’t we all?) in terms of profile, connections, and fundraising prowess. If she wants to run for governor or the next Congressional opening, she’ll need to raise her public profile and differentiate herself from a potential swarm of primary candidates.

The best way for her to do that — and also, ahem, do the right thing — is to find ways to lead the fight against Trump. Even purely symbolic moves would help.

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A Little Fascist Cosplay Right Here in Vermont

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Thank God Becca White was there.

I’m so sorry Becca White was there, because she had to witness… I’d call it a farce, which it is, but it may well be a harbinger of the post-democratic America that Donald Trump wants to create. A post-democratic America which would be no respecter of state borders, red, purple or blue.

The state senator from Windsor County was on hand when her friend and Vermont resident Mohsen Mahdawi was kidnapped by cowardly stormtrooper wannabes hiding their faces and driving unmarked vehicles. In fact, they needed four unmarked vehicles and who knows how many agents to corral a legal U.S. resident and known pacifist.

Brave, brave men. With little tiny penises.

What would we know about Mahdawi if not for White being present to document his kidnapping? We’d probably know the fact of his detention (his lawyer was present), but we wouldn’t have video proof of this unlawful action by a bunch of unAmerican secret police cosplayers.

God, it’s contemptible. And deeply scary. How’s that thing go? “First they came for the Palestinians, and I did not speak out because I am not Palestinian.” Something like that.

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Pieciak is Everywhere

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It’s pretty obvious to any Vermont Political Observer, capitalized or otherwise, that the skids are being heavily greased for Treasurer Mike Pieciak to be the next Democratic nominee for governor. But I’d like to point out a small but telling piece of evidence that should not go unremarked upon.

Last week the Vermont Bar Association held a meeting in Manchester, and the occasion was marked by near-universal castigation of the Trump administration’s assault on the legal system (as reported, after the fact, by VTDigger). Members unanimously approved a statement affirming their support for the rule of law. In addition, Digger reports, more than 200 Vermont attorneys and elected officials have signed a statement “supporting the independence of the judiciary and outlining 15 instances of the current administration allegedly disregarding the rule of law.” The statement also announces a rally for lawyers opposed to Trump’s trample on May 3 in Burlington.

Prominent people quoted in the article include Reiber, Attorney General Charity Clark, Bar Association board president (and former deputy AG) Josh Diamond, former assistant U.S. Attorney Scott McGee, Bennington attorney David Silver, and his daughter, attorney* Natalie Silver…

… and Treasurer Mike Pieciak.

Okay, Pieciak is, in fact, a member of the Bar, so technically he qualifies. But he hasn’t been an active attorney since February 2014, when he took a position in the Peter Shumlin administration. He’s been in state government, not as an attorney, ever since.

*Correction: Silver is not an attorney. She is a law school graduate awaiting her law license.

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The Unbearable Weirdness of Being Attorney General

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Over the years, I have written some unkind things about the last two Vermont Attorneys General, Bill Sorrell and TJ Donovan. I can’t say I regret anything in particular. But in light of recent events, it must be said that some of their actions have less to do with political timidity or personal fecklessness and more to do with the inherent weirdness of the office itself.

Our current Attorney General, Charity Clark, has been all over the news this week. She joined other AGs in challenging the Trump administration order ending birthright citizenship. She announced a multi-billion-dollar settlement of a lawsuit against the Sacklers and other bigwigs of Big Pharma responsible for an epidemic of substance use disorder. Strong stuff.

At the same time, her office was before the Vermont Supreme Court defending Gov. Phil Scott’s appointment of Zoie Saunders as interim education secretary. Yes, a Democratic AG was taking the side of a Republican governor in a lawsuit filed by a Democrat and a Progressive.

Because she had no choice. Clark, like Donovan and Sorrell before her, can act like a progressive firebrand outside of Vermont, but she must defend the status quo within the state. It’s literally in her job description: She is the people’s lawyer, yet she also represents the state. And when those two notions are in conflict, her duty to the state comes first.

Here’s another encapsulation of the weirdness. Clark is pursuing a suit (originally filed by Donovan) against fossil fuel producers for knowingly contributing to global warming. But Clark would represent the state in a suit filed by the Conservation Law Foundation over the state’s failure to reduce greenhouse gas emissions. She’d be arguing against climate action. Not because she’s an environmental hypocrite, but because she is legally bound to represent the state in court.

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It’s Complicated.

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My first reaction to the passing of Sen. Dick Sears? I was sad. Honestly. He was a genuinely nice guy who always tried to do what he saw as best for Vermont.

That said… I think the Senate will, on balance, be a better place without him.

See, it’s complicated.

Dick Sears was one of the last remaining Old Lions of the Senate. Like his fellow members of the pride, he was a raging institutionalist who loved the Senate exactly as it was. I see the Senate quite differently: far too self-absorbed and far less functional than it ought to be, too closed to new ideas and too scornful of the Legislature’s junior chamber.

But of all the past and present Old Lions, Sears was the most valuable. He brought a lot to the table. As longtime chair of the Senate Judiciary Committee, he knew the law as well as anyone. Due in part to his own humble upbringing, he often thought of the law in terms of those caught in its crosshairs, and that’s a rare quality in anyone who held a position of authority as long as he did. On the other hand, he thwarted many a reform measure if he thought it went too far, and was especially loath to enact any new gun bills.

And his voice was curiously silent when it came to the, shall we say, questionable practices of the police in his own backyard.

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You Know Things Are Bad When the Sheriffs Are Ratting Themselves Out

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A little over a year ago, in the midst of multiple scandals surrounding Vermont sheriffs, I asked if we might be better off getting rid of the office entirely. Sheriffs are chosen in extremely low-visibility campaigns; they routinely win re-election whether they’re capable or not; and their finances are tailor-made for exploitation. The office is an appendix from a much earlier stage in our history, and it’s prone to severe infection.

Now it’s gotten bad enough that the sheriffs themselves are calling for change. The Vermont Department of State’s Attorneys and Sheriffs, usually a staunch defender of the profession, wants to require that sheriffs prove their professionalism by holding the state’s top law enforcement certification. And the Vermont Sheriffs’ Association is calling for the resignation of (Only in Journalism Word alert) embattled Franklin County Sheriff John Grismore.

They’re probably a bit late on both counts. The State’s Attorneys and Sheriffs’ stance came in a report mandated by the Legislature, which is clearly honed in on the issue and is likely to see this suggestion as a baseline, not a topline. As for Grismore, well, shortly after the VSA call, he pretty much poured gasoline on his head and set himself on fire in open testimony before a legislative panel considering his impeachment.

So yeah, things are bad in sheriffland and the guys with badges are struggling to contain the damage.

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You Can Rely On Our Stouthearted Guardians of Justice (Terms and Conditions Apply)

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I guess the good folks of Pawlet know how Kiah Morris felt.

When she was subjected to racist abuse and threats, the former state representative got no backing from law enforcement on any level, from the local police to the state attorney general’s office. And now the people of Pawlet have gotten the same quality service from the Rutland County Sheriff’s Office and Vermont State Police, who failed to enforce an order for the arrest of militia training center chief Daniel Banyai.

And now the arrest warrant has expired, so Pawlet is seeking an extension with the addition of court oversight so the cops can’t stall out the clock once again.

The expiration was first reported last week by the Bennington Banner, and re-reported this week by VTDigger. The details show two police agencies with no heart for the task, making excuses for their lack of action.

I get it. Driving onto the grounds of the heavily-armed Slate Ridge compound with the intent of arresting its founder seems like a perilous endeavor. But still, it’s their job.

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One “Minor” Consequence of the Flood: A Dramatic Shortage of Legal Representation for Renters

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Even in the best of times, the court system is stacked against renters. When landlord/tenant disputes arise, property owners can afford lawyers while renters cannot. The flood will seriously exacerbate this imbalance. As I predicted back on July 14 and VTDigger reported on, ahem, July 31, the flood “disproportionately hit Vermont’s affordable housing stock.”

All those renters occupying flood-ravaged housing will find legal resources very difficult to come by. The scope of this problem has yet to unfurl, and it’s going to be bad for months to come. At minimum. A lot of tenants are going to get screwed.

“There are very few private attorneys who will represent tenants, who are generally low income and unable to pay,” said Sam Abel-Palmer, Executive Director of Legal Services Vermont, a nonprofit focused on civil litigation. His organization and Vermont Legal Aid try to make up for the failure of the free market, but they can offer perhaps 10 full-time attorneys to help all the renters in Vermont. Besides that, there are a few private lawyers who take some cases on a pro bono basis and the state Bar Association pays reduced fees to some members who represent renters.

That’s about all. It falls short of meeting the need, even in the absence of a major disaster. “We sometimes can take cases, sometimes we can offer advice,” said Abel-Palmer.

And now?

“It’s not remotely enough,” Abel-Palmer said.

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