STATE OF VERMONT

WASHINGTON SUPERIOR COURT

WASHINGTON COUNTY, SS. Civil Action, Docket No. 656-12-03 Wncv

JUDICIAL WATCH, INC.,

Plaintiff

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

PLAINTIFF’S MOTION FOR RULE 12(c)

JUDGMENT AND SUPPORTING MEMORANDUM

Plaintiff Judicial Watch, Inc. (“Judicial Watch”), by its undersigned attorneys, hereby moves pursuant to V.R.C.P. 12(c) for judgment on the pleadings, ordering Defendants to immediately make available to Judicial Watch and the general public the 146 boxes of gubernatorial records that Defendants refuse to disclose despite Judicial Watch’s requests under the Vermont Access to Public Records Act, 1 V.S.A. §§ 315 to 320 (the “Public Records Act”). Plaintiff also seeks its reasonable attorneys’ fees and costs incurred in this case as provided by 1 V.S.A. § 319(d).^{^[1]} In support of this motion, Plaintiff submits the incorporated memorandum.

“The generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to.” Caledonian-Record Publ’g Co. v. Walton, 154 Vt. 15, 21 (1990) (quoting U.S. Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 772-73 (1989)) (emphasis in original). Yet some five months before officially announcing his candidacy for president, Governor Dean abandoned this principle, explaining on Vermont Public Radio that “there are future political considerations. We didn’t want anything embarrassing appearing in the papers at a critical time in any future endeavor.” Regardless of Governor Dean’s motivations, as a matter of law, the 146 boxes of gubernatorial records should immediately be released to Judicial Watch and the general public, and judgment should be entered in favor of Plaintiff pursuant to V.R.C.P. 12(c).

FACTS

The relevant facts are simple and undisputed. For purposes of a Rule 12(c) motion, the facts asserted by the non-movant are deemed to be true, Thayer v. Herdt, 155 Vt. 448, 456 (1990), so the following facts are drawn from Defendants’ Answer (including admissions of exhibits’ authenticity). See discussion of Rule 12(c) standard, infra, at 5-6.

“[T]he public has an interest in Howard Dean’s tenure as Governor of the State of Vermont and in his gubernatorial papers.” Answer, ¶ 18 at 5. In order to obtain access to those gubernatorial papers, Judicial Watch “followed the procedure set forth in the Public Records Act.” Answer, ¶ 20 at 5. Specifically, by letter dated August 25, 2003 to Defendant Sanford, Judicial Watch requested access to all of the gubernatorial public records of former Vermont Governor and current United States presidential candidate Howard Dean. See Answer, ¶ 9 at 2-3; Complaint, Exhibit 1.

By letter dated August 26, 2003, Sanford informed Judicial Watch that its representatives were free to inspect certain limited gubernatorial records of Governor Dean, but that other gubernatorial records of Governor Dean were not available for inspection pursuant to a January 2003 Memorandum of Understanding (“MOU”) entered into and executed by Governor Dean, Defendant Markowitz and Vermont Attorney General William Sorrell. According to the MOU, “any portion of correspondence determined by Governor Dean to be encompassed by executive privilege” will be sealed for ten years. See Answer, ¶¶ 10, 11 at 3; Complaint, Exhibits 2, 3.

By letter dated November 19, 2003, Judicial Watch appealed the denial of that request to Secretary of State Markowitz. See Answer, ¶ 14 at 4; Complaint, Exhibit 4. By letter dated November 26, 2003, Secretary of State Markowitz rejected Judicial Watch’s appeal. See Answer, ¶ 19 at 5; Complaint, Exhibit 7.

On December 3, 2003, Judicial Watch filed its Complaint seeking full and immediate access to Governor Dean’s public records and requesting an expedited hearing in accordance with 1 V.S.A. § 319(b). On December 23, 2003, Defendants served their Answer. On January 12, 2004, Judicial Watch served its Reply. Because Judicial Watch is entitled to judgment as a matter of law, it now moves for judgment on the pleadings under V.R.C.P. 12(c).

ARGUMENT

I. THIS IS AN APPROPRIATE CASE FOR RULE 12(c) JUDGMENT ON THE PLEADINGS.

V.R.C.P. 12(c) provides that “[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” A plaintiff as well as a defendant may move under Rule 12(c). See, e.g., Ramsey v. Amfac, Inc., 960 F. Supp. 1424, 1430 (N.D. Cal. 1997) (granting 12(c) judgment for plaintiff). Under V.R.C.P. 10(c), “[a] copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” Thus, the exhibits to the pleadings are “part of the pleadings and can be considered on a Rule 12(c) motion for judgment on the pleadings without the motion being converted to one for summary judgment.” Horsley v. Feldt, 304 F.3d 1125, 1134 (11^th Cir. 2002).

This case is about Judicial Watch’s written request for access to public records, and the legitimacy of the Defendants’ written refusal. The material facts are undisputed; Defendants have made critical admissions, including acknowledging the authenticity of each of the documents annexed to the Complaint (including, in particular, the “Memorandum of Understanding”) and have stated, with respect to each of them, that “Plaintiff’s characterization of [it] does not require a response. If a response is required, defendants state that [it] speaks for itself.” See Answer, ¶¶ 9, 10, 11, 13, 14, 16, 17, 19 at 2-5; see also Horsely, 304 F.3d at 1134 (“‘Undisputed’ in this context means that the authenticity of the documents is not challenged.”) (declining to convert 12(c) motion to summary judgment motion).

Judgment on the pleadings is appropriate here because the issues before this Court, as presented by the pleadings, are purely legal and Judicial Watch is entitled to judgment as a matter of law. See Burns Int’l Sec. Services v. Int’l Union, 47 F.3d 14, 16 (2d Cir. 1995) (“Judgment on the pleadings is appropriate if, from the pleadings, the moving party is entitled to judgment as a matter of law.”). Judgment on the pleadings is especially appropriate in a public records case such as this, given the mandate of 1 V.S.A. § 319(b), which provides (with emphasis added):

Except as to cases the court considers of greater importance, proceedings before the superior court, as authorized by this section, and appeals therefrom, shall take precedence on the docket over all cases and shall be assigned for hearing and trial or for argument at the earliest practicable date and expedited in every way.

This Court should not hesitate to grant this motion.

II. JUDGMENT ON THE PLEADINGS SHOULD BE GRANTED.

A. Because They Are Public Records, The 146 Boxes Of Gubernatorial Documents Are Subject To Disclosure Under The Vermont Access To Public Records Act.

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.” Id. § 316.

The definition of “public records” is “sweeping,” see Caledonian-Record Publ’g Co. v. Walton, 154 Vt. 15, 19 (1990), and the Public Records Act is to be “liberally construed in favor of public access to documents falling within its scope.” Herald Ass’n, Inc. v. Dean, 816 A.2d 474, 474, 13 Vt. L. W. 283 (Vt. 2002); 1 V.S.A. § 315 (“the provisions of this subchapter shall be liberally construed”). “Public records” include “all papers, documents, machine readable materials or any other written or recorded matters, regardless of their physical form or characteristics, that are produced or acquired in the courts of agency business.” 1 V.S.A. § 317(b). Because an “agency” is defined to include any “branch, instrumentality or authority of the state,” id. § 317(a), and because it is “hardly disputable” that the Governor’s office fits that definition, the Vermont Supreme Court has held that “any paper or document ‘produced or acquired’ during the course of the Governor’s business is a public record subject to disclosure under the [Public Records] Act, unless some exception to the Act applies.” Dean, 816 A.2d at 473.

Here, the 146 boxes of documents at issue are “the official correspondence of the Governor.” Answer, Exhibit 1 at 1. Accordingly, these documents are clearly public records subject to disclosure under the Public Records Act. Judicial Watch has requested access to these records and has “followed the procedure set forth in the Public Records Act.” Answer, ¶ 20 at 5. Thus, unless there is an applicable exception, the 146 boxes of gubernatorial documents must be disclosed under the Public Records Act.

B. Governor Dean Has Not Met His Burden Of Establishing The “Executive Privilege” Exception To Disclosure.

Defendants assert “executive privilege” as the exception to disclosure under the Public Records Act. Without question, Vermont case law has held that the assertion of common law privileges, like the “executive privilege,” may sometimes prevent the disclosure of public records under 1 V.S.A. § 317(c)(4). It is important to keep in mind that, at its core, this privilege (which is not absolute) is designed to protect a governor’s decision-making or deliberative process, in order to benefit the public, not the governor or his political ambitions.

Under the common law executive privilege, documents reflecting communications in the course of the Governor’s decision-making and deliberative process may be withheld from the public to protect and facilitate the Governor’s consultative and decisional responsibilities. The privilege, which is not absolute, furthers the public interest by allowing the Governor to obtain open advice on matters of public importance.

Dean, 816 A.2d at 474-75 (citation omitted). Even more important, in order for the privilege to attach in the first place, a prima facie case must be made by the governor upon receiving a request for any documents potentially protected.

Here, by signing and relying on his “Memorandum of Understanding,” Governor Dean ignores judicial precedent by failing to follow the Vermont Supreme Court’s ruling that requires the making of a prima facie case for executive privilege; he thereby exceeded his powers and encroached on those of the judiciary. The “Memorandum of Understanding” represents a further violation of the separation of powers because it encroaches on the powers and province of the Legislature. See generally Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585, 587 (1952) (“The President’s power, if any, to [take the action] must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to [take the action] as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. . . . The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.”). On its face, the “Memorandum of Understanding” has the look and feel of a statute, for it explains the “reasons” for the “policies” it embraces and proclaims “rules of conduct to be followed.” See id. at 588.^{^[5]} Governor Dean also ignored the statutory requirements of 3 V.S.A. § 4 to provide a complete “itemized list” of his correspondence.

The governor is simply not the legislature, and thus he cannot enact statutes. Nor is he the court, so he cannot declare statutes to be invalid or make new common law. Even Defendant Sanford himself correctly cautioned in his August 21, 2002 memorandum to the Governor’s Legal Counsel, David Rocchio, that “to begin building post-gubernatorial controls into memoranda of understanding raises legal issues and is bad precedent.” See Answer, ¶ 16 at 4; Complaint, Exhibit 5.^{^[6]} The Defendants’ acts have no basis in law, and violate the fundamental principle of a separation of powers by usurping the powers of the other branches of government.

Defendants suggest in their Answer, as an “Affirmative Defense,” that after a review of the documents at issue, they might wish to make brand-new assertions of privilege under any number of thirty (30) provisions of the Public Records Act in order to prevent the release of these documents, though they do not specify how or why any such privilege(s) might attach. See Answer, ¶ 3 at 6 (“the State reserves the right to assert and may assert, upon review of the sealed documents, any exemption or combination of exemptions set forth in 1 V.S.A. § 317(c)(1) through (c)(30) of the Public Records Act”). This defense can perhaps best be characterized as the legal equivalent of a “Hail Mary” pass: if all else fails, Defendants say, they will toss the ball high in the air to see if it lands in the hands of some exemption that might prevent the gubernatorial documents from seeing the light of day.

This attempt is too little, too late. It is too little because there is a required showing of any such exemption, which has not been made. See, e.g., Finberg v. Murnane, 159 Vt. 431, 438 (1992) (“[D]efendants had the burden of showing that an exception applies. They cannot discharge this burden by conclusory claims or pleadings.”). It is too late because Defendants have already proclaimed these documents as protected by “executive privilege” and nothing else. They should be bound by that proclamation, they should be held to their word, and they should not be allowed to grasp at after-the-fact straws. Further, the suggestion that these documents might be protected by some “medical confidentiality” privilege simply makes no logical sense: after all, if the documents truly contained such secret, personal information that ought not be revealed, then why has Governor Dean agreed to release it at a later date – “commencing on January 10, 2013"?^{^[10]}

It also bears mentioning that the MOU negotiated by all four Defendants and signed by Governor Dean, the Secretary of State and the State Attorney General expressly provides that the “executive privilege documents shall be accessible . . . [i]n accordance with written authorization from Governor Dean;” the MOU also provides that once that happens, “they shall be reintegrated with Governor Dean’s official correspondence within the Archives.” Answer, Exhibit 1, ¶¶ II(B)(2) and II(C) at 3. By its own terms, it does not contemplate the new assertion of some additional exemption. Rather, the MOU contemplates that, if Governor Dean provides a written “ok,” then the documents become publicly available and “reintegrated” with the correspondence. There is no mention made of any after-the-fact, last-minute assertion of an “exemption.”

CONCLUSION

For all of the foregoing reasons, Judicial Watch’s motion for judgment on the pleadings pursuant to V.R.C.P. 12(c) should be granted. Further, Judicial Watch should be awarded its costs and reasonable attorneys’ fees incurred in bringing this action in accordance with 1 V.S.A. § 319(d). This is no “case of first impression” in which Governor Dean and the other Defendants were unsure of their legal obligations. To the contrary, they know full well what the statutes and case law require in order to legitimately assert a claim of “executive privilege.” Cf. Herald Ass’n, Inc. v. Dean, 816 A.2d 469, 478, 13 Vt. L. W. 283 (Vt. 2002) (declining to award attorneys’ fees where superior court noted “that this was a case of first impression in Vermont”).

Dated: Burlington, Vermont

January 22, 2004

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, P. O. Box 369

Burlington, VT 05402-0369

(802) 658-0220

For Plaintiff

^{^[1]} For the Court’s convenience, copies of Plaintiff’s Complaint (the “Complaint”), Defendants’ Answer and Counterclaim (the “Answer”), and Plaintiff’s Reply to Counterclaim (the “Reply”), together with their exhibits, are annexed hereto as, respectively, Exhibits A, B and C.

^{^[2]} Defendants have asserted a wholesale claim of executive privilege, without even attempting to meet their burden of proof, in the hopes that the resolution of this matter will be so delayed as to make the matter moot. We anticipate that Defendants may now request a belated opportunity to meet their burden. This request should be denied; such unfair delay tactics should not be countenanced by the Court, for they run counter to well-settled legal burdens and the expedited treatment this kind of case must receive by statutory mandate. See 1 V.S.A. § 319(b).

^{^[3]} Significantly, Defendants do concede that “the public has an interest in Howard Dean’s tenure as Governor of the State of Vermont and in his gubernatorial papers.” Answer, ¶ 18 at 5. So it may well be that Plaintiff could make the requisite showing of need, especially given Governor Dean’s presidential bid. However, the Court need not address the issue, since the legal analysis does not even get that far.

^{^[4]} See also State of Hawai’i Org. of Police Officers (SHOPO) v. Soc’y of Prof’l Journalists, Univ. of Hawai’i Chapter, 927 P.2d 386, 413‑14 (Haw. 1996) (“With respect to public records statutes, the virtually unanimous weight of authority holds that an agreement of confidentiality cannot take precedence over a statute mandating disclosure.”) (citing, e.g., Trombley, 160 Vt. at 107-08; Anchorage Sch. Dist. v. Anchorage Daily News, 779 P.2d 1191, 1193 (Alaska 1989) (“a public agency may not circumvent the statutory disclosure requirements by agreeing to keep the terms of a settlement agreement confidential. Under Alaska law, a confidentiality provision such as the one in the case at bar is unenforceable because it violates the public records disclosure statutes.”); Register Div. of Freedom Newspapers, Inc. v. County of Orange, 205 Cal. Rptr. 92, 102 (Cal. Ct. App. 1984) (“We conclude that assurances of confidentiality . . . are inadequate to transform what was a public record into a private one.”); Lieberman v. State Bd. of Labor Relations,579 A.2d 505, 514 (Conn. 1990) (public access statute made agreement to destroy records “an illegal subject of bargaining” and thus “null and void”); Anonymous v. Bd. of Educ. for the Mexico Cent. Sch. Dist., 616 N.Y.S.2d 867, 870 (N.Y. Sup. Ct. 1994) (“an agreement to keep secret that to which the public has a right of access under Article 6 of the Public Officers Law would be unenforceable as against public policy.”); Toledo Police Patrolmen’s Ass’n, Local 10, IUPA v. City of Toledo, 641 N.E.2d 799, 802 (Ohio Ct. App. 1994) (“[T]he law is supreme, and no contract between individuals can make it lawful to do that which the statute positively commands shall not be done.”)).

^{^[5]} As the United States Supreme Court in Youngstown explained:

The President’s order does not direct that a congressional policy be executed in a manner prescribed by Congress – it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. . . . The Constitution did not subject this law-making power of Congress to presidential or military supervision or control.

343 U.S. at 588 (emphasis added).

^{^[6]} As Professor Cox explained in his seminal article published some thirty years ago (which the Vermont Supreme Court cited in Killington, Ltd. v. Lash, 153 Vt. 628, 634 (1990) and which the Defendants cited in their “Memorandum of Understanding”):

Claims of executive privilege have become increasingly frequent. . . . If the Executive Branch were left to itself, the practice would surely grow. Secrecy, if sanctified by a plausible claim of constitutional privilege, is the easiest solution to a variety of problems. The claim of privilege is a useful way of hiding inefficiency, maladministration, breach of trust or corruption, and also a variety of potentially controversial executive practices not authorized by Congress. Ability to control what information to disclose and when to disclose it is a potent political weapon. The evidence finally released by President Nixon just prior to his resignation made it abundantly clear that executive privilege had been used not to protect the Presidency, but to hide the misconduct of the President himself.

Archibald Cox, “Executive Privilege,” 122 U. Pa. L. Rev. 1383, 1433 (1974). See also 16A Am. Jur. 2d Constitutional Law § 247 (1998 & Supp. 2003) (“The principle of the separation of the powers of government is fundamental to the very existence of constitutional government as established in the United States. The division of governmental powers into executive, legislative, and judicial represents probably the most important principle of government declaring and guaranteeing the liberties of the people. It prevents the exercise of autocratic power. . . . In short, this division of power provision serves to create a governmental structure ‘resistant to the forces of tyranny.’”) (citing, inter alia, In re D.L., 164 Vt. 223 (1995)).

^{^[7]} Indeed, if “others have done it and gotten away with it” is the new standard of legality, then the Defendants have now provided all of us with a convenient defense against our next parking ticket.

^{^[8]} See Charles R. Schultz, “Gubernatorial Records: Status, Access, and Content,” Paper delivered at the Society of American Archivists Annual Meeting 71-72 (Birmingham, Alabama, August 23, 2002) (“Question 33: Do your state laws exempt all or a portion of the records of the governor’s office from public disclosure for a specific number of years after the governor leaves office?” Response included only five “yes” answers.). This paper can be found at the website of the Council of State Historical Records Coordinators (COSHRC), www.cohrc.org.

In the MOU, Defendants cite to the “Guidelines for Access to Governor Kean’s Official Papers” in support of “ten years” as “a reasonable but brief period in comparison to the ‘executive privilege’ closing periods used in other jurisdictions.” Answer, Exhibit 1 at 2, n.3. The citation is erroneous. Although Governor Kean did establish guidelines for access to his papers (including papers containing private financial information and police investigations), in those guidelines he expressly waived any assertion of executive privilege: “Subject to the exceptions noted above, I waive all claims of legal or executive privilege pertaining to my official papers.”

^{^[9]} “The privilege, which is not absolute, furthers the public interest by allowing the Governor to obtain open advice on matters of public importance.” Dean, 816 A.2d at 474-75 (citation omitted). Once the governor is out of office, however, the analysis changes, for any potential political “down side” to meeting with a controversial group has vanished. See, e.g., Times Mirror Co. v. Superior Court, 813 P.2d 240, 251 (Cal. 1991) (“If the law required disclosure of a private meeting between the Governor and a politically unpopular or controversial group, that meeting might never occur.”). Here, Governor Dean’s meetings with a “controversial group” obviously cannot hinder his effectiveness as the chief executive of Vermont, since he no longer holds that office. See also Answer, ¶ 16 at 4; Complaint, Exhibit 5 (“Killington v. Lash [establishing executive privilege in Vermont] address[es] sitting governors”) (emphasis added).

^{^[10]} We note that this date happens to fall precisely after the expiration of what would be, if elected and re-elected, Governor Dean’s second term as president. Surely, then, protecting the privacy of, say, persons infected with HIV is not the reason for this period of secrecy.