Dollars and Sense: Has Attorney General Bill Sorrell Earned His Keep?

Vermont’s first real race for attorney general since Bill Clinton was on the ballot began Monday, when Chittenden County State’s Attorney T.J. Donovan announced he would challenge 15-year-incumbent Bill Sorrell [1] in the Democratic primary election.

Donovan’s challenge raises the question: Is Sorrell’s fate tied to how much money he has won or lost the state?

Since Gov. Howard Dean appointed him to the post in 1997, Sorrell has never faced a serious challenger. But his cloak of electoral invincibility was torn asunder in January, when a federal judge ruled against the state in a lawsuit brought by Entergy Corp. to keep the Vermont Yankee nuclear power plant open for business.

Within a few days, Vermont Associated Press writer Dave Gram was tallying the cost of two of Sorrell’s earlier high-profile losses: In 2006, the U.S. Supreme Court tossed out Vermont’s strict campaign finance law, costing the state $1.5 million. In 2011, the court struck down a law curbing pharmaceutical companies’ ability to mine prescription drug records for marketing purposes, costing Vermont $1.8 million to date.

Factoring in another $3.8 million Vermont may have to shell out for the precription drug case, Gram concluded, “The total, at least $7 million, nearly equals the roughly $8 million annual budget of Sorrell’s office.”

Entergy has also demanded the state pay its attorney fees of $4.6 million for the Vermont Yankee case, though Sorrell is appealing the federal judge’s decision.

The attorney general was quick to fire back with his own accounting: Through enforcement actions, his office brought in $40 million last year alone, Sorrell said. That number has been repeated a number of times since, most recently by Gov. Peter Shumlin last week on VPR’s “Vermont Edition.”

“Let’s look at the facts,” he told host Bob Kinzel. “The attorney general’s office this year brought in $40 million in various awards from suits that they filed and won on behalf of Vermonters. Sometimes you win suits; sometimes you lose suits. The fact of the matter is our attorney general’s office wins a lot more than they lose. So it’s a net positive operation.”

That’s the wrong calculation, according to Vermont Law School professor Cheryl Hanna, who also considered running for attorney general. “I think the question Vermonters have to ask is: Are the interests of the people of the state being well defended by the attorney general’s office?” she says. “The money is sort of a secondary indicator of that. It’s not really a primary indicator.”

In a Rutland Herald op-ed defending Sorrell’s record, former attorney general Jerome Diamond — a Democrat who served from 1975 to 1981 — made note of Sorrell’s $40 million haul. But even he says Sorrell’s balance sheet shouldn’t be the focus of the race.

“It really shouldn’t be, because the issue is the pursuit of justice,” Diamond says. “Sometimes you bring cases that have to be brought as a prosecutor even when there’s a likelihood you’ll lose.”

So why all the focus on the bottom line?

“I think people may be focused on dollars because you can count them. It’s quantifiable,” says Vermont ACLU executive director Allen Gilbert, noting that he would prefer the race focus on government transparency and police professionalization.

With an in-house staff of 46 attorneys and 29 other employees — plus partial supervisory authority over 38 attorneys in different state departments — the AG’s office tackles everything from enforcing the state’s environmental laws to prosecuting violent crimes to defending state laws in court. While less sexy, perhaps, than fighting the corrosive influence of money in politics before the U.S. Supreme Court, the office’s more mundane consumer protection work likely has a greater day-to-day impact on the lives of most Vermonters.

For instance, the attorney general’s Consumer Assistance Program, which it runs in partnership with the University of Vermont, handled more than 8600 consumer complaints in 2011. According to Sorrell’s office, 40 percent of them were resolved successfully, resulting in the recovery of roughly $360,000.

Even among the highest-profile cases waged by the attorney general’s office, money is often beside the point. One of Sorrell’s biggest wins came in 2007, when a federal court sided with Vermont in allowing the state to adopt California’s auto-emission standards. While the auto industry fought similar legislation in a number of states, Vermont’s was the first to go to trial — and, according to Diamond, Sorrell’s win set an important national precedent.

“It was a huge, huge win,” Diamond says.

Sorrell says he’s proud of his record.

“The reality is we have defended Vermont’s laws successfully in state court and in federal court, and we have won the vast majority of those cases,” he says. “Do we bat 1000 percent? No. There’s not an attorney in the world who does.”

Sorrell is also quick to point out that in all three major cases he lost, he was defending laws passed by the legislature that were “pushing the envelope.”

Hanna agrees with that assessment, saying, “The legislature bears some responsibility in what they’re doing as well. It’s sort of unfair to the attorney general in some ways when the legislature passes all these laws that are marginally constitutional and the attorney general pays the price for that.”

At the same time, Hanna and fellow VLS professor Pat Parenteau, who has criticized Sorrell’s handling of the VY case, say that part of the attorney general’s job is to tell the legislature when it passes laws he feels he cannot successfully defend. Parenteau believes Sorrell failed to do that in the campaign finance case, which he termed “dead on arrival.”

He says Sorrell should have told the legislature that Vermont is developing “a reputation for not only pushing the envelope, but for not reading the law, not reading the precedents and not thinking more carefully about what we’re doing.”

While not exactly apples-to-apples, documents provided by Sorrell’s office lend some context to his office’s success rate. In 2011, the attorney general’s office lost 40 cases, costing the state almost $2.2 million in claims. That figure includes the $1.8 million pharmaceutical company decision.

On the other side of the ledger, Sorrell’s office recovered $41 million in fiscal year 2010, $38.7 million in 2011 and $6.6 million so far this year. Of that, the vast majority comes from just one case: the historic 1998 settlement between four tobacco companies and the attorneys general of almost every state in the country.

Though Sorrell signed Vermont on to that case just four weeks after taking office in 1997, it remains the highlight of his tenure. He takes credit not only for getting the state involved with the national lawsuit, but also for insisting on a small-state minimum in settlement negotiations, guaranteeing Vermont a larger slice of the tobacco pie.

“I’m proud of trying to fight the tobacco industry, but also in terms of significance, we bring in right now about $35 million a year or so from the settlement,” Sorrell says.

According to a list provided by the attorney general’s office, $33.9 million of the $38.7 million recovered by Sorrell in 2011 came from the tobacco settlement. Much of the rest also came from national lawsuits to which Vermont was party, principally involving pharmaceutical companies. For instance, the state took $1.4 million of a $68.5 million settlement against AstraZeneca for the illegal marketing of the psychiatric drug Seroquel, and it took $530,000 of a $41 million settlement with GlaxoSmithKline relating to the substandard production of drugs at a Puerto Rico facility.

Even though his office may play a marginal role in many of these national cases, Sorrell says signing on to them is an important part of his job. The more legal talent the state contributes, the more it potentially stands to gain from the settlement.

“We have to pick and choose because we are relatively a very small office,” he says. “I think for our size, we have a huge place at the table for environmental protection, consumer protection and anti-trust enforcement.”

Diamond, the former Vermont attorney general, agrees.

“I think it is part of the role of every state attorney general to be aware of what investigations are being carried out nationally, what settlements are potentially being offered and whether it affects citizens of your particular state,” he says.

When he announced his intention to run against Sorrell in the Democratic primary, Donovan paid tribute to Sorrell’s past successes. But not surprisingly, he was more interested in talking about the future.

“I think Bill has done some things very well: tobacco, auto emissions,” he said. “And while tobacco was the number one public health issue when that case was settled in the 1990s, and is still a public health issue, I think the number one public health issue today is prescription-drug abuse. That will be one of my priorities as attorney general.”