STATE OF VERMONT                                              WASHINGTON SUPERIOR COURT

 

WASHINGTON COUNTY, SS.                                Civil Action, Docket No.

 

 

JUDICIAL WATCH, INC.,                                  

Plaintiff                                          

                                                                             

v.                                                  

                                                                             

THE STATE OF VERMONT,                              

DEBORAH L. MARKOWITZ,                            

in her official capacity as Secretary of                     

State of the State of Vermont,                                

GREGORY SANFORD,                                      

in his official capacity as State Archivist                  

of the State of Vermont, and                                  

HOWARD DEAN, M.D.,                                     

in his capacity as former                                         

Governor of Vermont,                                           

Defendants                                    

 

 

 

                 COMPLAINT UNDER VERMONT ACCESS TO PUBLIC RECORDS LAW

AND REQUEST FOR PRECEDENCE ON THE DOCKET

 

Plaintiff Judicial Watch, Inc. (“Judicial Watch”), by its undersigned attorneys, for its Complaint against Defendants, alleges as follows:

 

NATURE OF ACTION

1.         This action seeks Defendants’ compliance with the Vermont Access to Public Records Act, 1 V.S.A. §§ 315 to 320.  Defendants have steadfastly refused to disclose hundreds of thousands of pages of public records and papers of former Vermont Governor and current United States presidential candidate, Dr. Howard Dean, based solely on an unsupported, blanket claim of “executive privilege” as memorialized in a “Memorandum of Understanding” that Dr. Dean negotiated with the other Defendants.  However, some five months before officially announcing his candidacy for president, Dr. Dean acknowledged (on Vermont Public Radio) that this secrecy is motivated by “future political considerations” and the desire to prevent “anything embarrassing [from] appearing in the papers at a critical time in any future endeavor.”  This is not a legitimate basis for refusing to release public documents.

 

                                                     JURISDICTION AND VENUE

2.         This Court has jurisdiction over this action pursuant to 4 V.S.A. § 113, and venue is properly situated in this Court pursuant to 1 V.S.A. § 319(a).

 

PARTIES

3.         Plaintiff Judicial Watch is a non-profit, educational foundation organized under the laws of the District of Columbia with its principal place of business at 501 School Street, S.W., Suite 500, Washington, D.C. 20024.  Judicial Watch is a public interest, non-partisan “watchdog” organization that routinely requests, obtains and disseminates information and records regarding government officials and operations.

4.         Defendant Deborah L. Markowitz (“Markowitz”) is the Secretary of State of the State of Vermont with her principal place of business in Montpelier, Vermont.  Defendant Markowitz is being sued in her official capacity as Secretary of State of the State of Vermont.

5.         Defendant Gregory Sanford (“Sanford”) is the State Archivist of the State of Vermont with his principal place of business in Montpelier, Vermont.  Defendant Sanford is being sued in his official capacity as State Archivist of the State of Vermont.

6.         Defendant State of Vermont employs Markowitz and Sanford, who act under its authority.

7.         Defendant Howard Dean, M..D, is the former Governor of the State of Vermont.  Defendant Dr. Dean is being sued in his capacity as former Governor of Vermont, and is named as a Defendant in accordance with V.R.C.P. 19(a)(2).

 

                                                                        FACTS

8.         Vermont’s Access to Public Records Act declares:  “Officers of government are trustees and servants of the people and it is in the public interest to enable any person to review and criticize their decisions even though such examination may cause inconvenience or embarrassment.”  1 V.S.A. § 315.  The Act permits “[a]ny person” to “inspect or copy any public record or document....”  1 V.S.A. § 316.

9.         By letter dated August 25, 2003 to Defendant Sanford, Judicial Watch requested access to all of the gubernatorial public records and papers of former Vermont governor and current United States presidential candidate Howard Dean, pursuant to the Vermont Access to Public Records Act, 1 V.S.A. § 315, et seq.  (A copy of that letter is annexed hereto as Exhibit 1.)

10.       By letter dated August 26, 2003, Sanford informed Judicial Watch that its representatives were free to inspect certain, limited gubernatorial records of Governor Dean during regular office hours at the Office of the Secretary of State, including “hundreds of pages of children’s request[s] for autographs, congratulatory notes to Vermonters achieving some milestone (100th birthday, for example), etc.”  (A copy of that letter is annexed hereto as Exhibit 2.)

11.       Sanford also asserted that other gubernatorial records of Governor Dean were not available for inspection, but, rather, were protected from public disclosure by a January 2003 Memorandum of Understanding (“MOU”) entered into and executed by Governor Dean, Defendant Markowitz and Vermont Attorney General William Sorrell (“Sorrell”).  According to the MOU, a copy of which was included with Sanford’s August 26, 2003 response, “any portion of correspondence determined by Governor Dean to be encompassed by executive privilege” will be sealed for ten years.  (A copy of the MOU is annexed hereto as Exhibit 3.)

12.       There is no Vermont statute or other law that authorizes a governor (or anyone else, for that matter) to enter into a “Memorandum of Understanding” as a means of preventing public review of a governor’s official correspondence.

13.       By letter dated November 19, 2003, Judicial Watch appealed Sanford’s determination to Secretary of State Markowitz.  (A copy of that letter is annexed hereto as Exhibit 4).  In its appeal letter, Judicial Watch cited press reports indicating that between 30% to 40% of Governor Dean’s gubernatorial records were being withheld from public scrutiny based on a blanket claim of “executive privilege.”  Id., citing, Ross Sneyd, “Washington Watchdog Group Wants to Force Dean to Open Records,” Associated Press, October 1, 2003.  Judicial Watch’s appeal letter also noted: 


The roughly 550,000 to 600,000 gubernatorial records that are available for public inspection reportedly consist of routine correspondence, executive orders, appointments, etc.  These documents are not particularly useful or interesting to persons or organizations wishing to examine Governor Dean’s record on policy development and implementation, governance and management.  Given Governor Dean’s political aspirations for the presidency, there is a broad-based, compelling public interest in his policy and management record as governor of Vermont.

 

Id.  Judicial Watch’s appeal also observed that other organizations, including The Boston Globe, requested access to all of Governor Dean’s gubernatorial records.  Id.  Judicial Watch explained that it simply “seeks to have these records made available to the citizens of Vermont, the news media, public interest groups, and the American public for their review.”  Id.  

14.       Judicial Watch’s November 19, 2003 appeal letter further noted that, in January 2003, when asked why he insisted on keeping such a large portion of his records closed to public review, Governor Dean told Vermont Public Radio:  “Well, there are future political considerations.  We didn’t want anything embarrassing appearing in the papers at a critical time in any future endeavor.”  Id., citing, Sarah Schweitzer, “Dean is Asked to Release Gubernatorial Records,” The Boston Globe, October 2, 2003.

15.       Memoranda and correspondence obtained by Judicial Watch through a subsequent Vermont Public Records Act request further demonstrate that Governor Dean’s political ambition, rather than any legitimate concern about protecting the deliberative or policymaking process, was the driving force behind efforts to withhold large portions of the Governor’s papers from public scrutiny. 

16.       For example, as Defendant Sanford explained in his August 21, 2002 memorandum to Governor Dean’s legal counsel, David Rocchio:

You asked me to further develop the idea that executive privilege closures might not be bound by a date certain, but rather reflect the Governor’s status (i.e., being President, presidential candidate) at the time the records would normally be open under a memorandum of understanding. . . . The “Willie Horton” example was raised.  It is an unfortunate reality that attack ads have become part of our political culture.  It would be impossible to anticipate how opponents might mis/use even the most innocuous of documents....

 

(A copy of that memorandum is annexed hereto as Exhibit 5.)

 

17.       And as Sanford explained in his September 4, 2002 memorandum to Markowitz and Sorrell:

Reality check: While David and I agreed earlier that “embarrassment” (ala Willie Horton type attack ads) was not grounds for exemption, we are really talking about “ambition.”     . . . Without conceding that a governor’s post-administration political ambitions are a legitimate basis for closure, can we offer, in the interest of moving forward, eight years?  That would mean that the records would become open in 2011.  If Gov. Dean became president in 2005 he would either be in his second term or out of office.  If he failed in 2004, that would mean he would have had an opportunity to run again in 2008 and, if successful, be in the second year of his administration.  [emphasis added]

(A copy of that memorandum is annexed hereto as Exhibit 6.)

18.       Governor Dean has chosen to become a candidate for the nation’s highest office, so the public has an obvious and compelling interest in his tenure as Governor of the State of Vermont and in his gubernatorial papers.  If, as press reports indicate, 30% to 40% of his gubernatorial papers are subject to the MOU’s restrictions, then as many as 400,000 pages of documents responsive to Judicial Watch’s August 25, 2003 Public Records Act Request are being withheld from public scrutiny based upon an unsupported, blanket claim of “executive privilege.”  Dr. Dean’s tenure as Governor and the documents relating thereto (including the refusal to make these documents publicly available) have all recently received considerable press coverage and without question reflect matters of public interest.  Judicial Watch seeks to have any and all of the Governor’s properly releaseable gubernatorial papers made available to Judicial Watch’s representatives, the citizens of Vermont, the news media, other public interest groups, and the American public, for their review.

19.       By letter dated November 26, 2003, Secretary of State Markowitz rejected Judicial Watch’s November 19, 2003 appeal.  (A copy of that letter is annexed hereto as Exhibit 7.)

20.       Judicial Watch has exhausted all administrative remedies to compel disclosure of the requested public documents, and its claims are now ripe for judicial review.

21.       Upon information and belief, a substantial number of the requested public documents are not exempt from disclosure.

 

REQUEST FOR PRECEDENCE ON THE DOCKET

Pursuant to 1 V.S.A. § 319(b), Plaintiff requests that this case be given precedence on the court docket.

 

WHEREFORE, Plaintiff respectfully requests that: (i) this matter be advanced on the docket of the Court and be given as expeditious a hearing as possible, pursuant to 1 V.S.A. § 319(b); (ii) Defendants be ordered to make all of the requested records, or any portion thereof not found to be protected from disclosure by executive privilege, available to Plaintiff and the pubic without further delay; (iii) this Court assess against Defendants all of Plaintiff’s costs and reasonable attorneys’ fees incurred in this action; and (iv) this Court grant Plaintiff such other and further legal and equitable relief as deemed just and proper.

Dated:              Burlington, Vermont

December 3, 2003

 

Paul J. Orfanedes, Esq.

Judicial Watch, Inc.

501 School Street, S.W., Suite 725

Washington, DC 20024

(202) 646-5172          

 

and

 

 

___________________________________

Andrew D. Manitsky, Esq.

Gravel and Shea

76 St. Paul Street, 7th Floor

P. O. Box 369

Burlington, VT  05402-0369

(802) 658-0220

Attorneys for Plaintiff