STAFF WRITER | February 09,2016
Photo by Kathleen Phalen Tomaselli Activist Annette Smith looks on while her attorney David Sleigh announces in a press briefing in the State House that the attorney general’s office has dropped her criminal investigation.
MONTPELIER — Attorney General William Sorrell said Monday his office did not find factual or legal support for the complaint against environmental advocate Annette Smith.
Following a December complaint by an unidentified source, Smith was under criminal investigation by the attorney general’s office for allegedly practicing law without a license.
“There is no basis for taking any enforcement action,” Sorrell said Monday by phone. “The fact that she retained an attorney who said it was a politically motivated investigation, it was not that. This was already within our internal time frame.”
Three weeks ago, Smith, who heads the nonprofit Vermonters for a Clean Environment, received a letter from the AG’s office informing her that she was under criminal investigation.
Smith retained attorney David Sleigh, who wrote a letter Friday to Sorrell’s office asking that they cease the criminal investigation it had launched against her.
Sleigh said the threat of an investigation was a way to silence Smith and her work with her nonprofit group.
“Other than putting a gun to someone’s head, this is an effective threat to free speech,” Sleigh said Friday night. “For the AG’s office to say ‘shut up or we’re going to incarcerate you,’ it’s astonishing.”
And in a media briefing at 11:30 a.m. Monday in the Cedar Creek Room of the State House in Montpelier, Sleigh announced to a group of nearly 150 environmental supporters that Smith’s case was closed.
“As you know, Annette was threatened with criminal prosecution. I just got off the phone with (Assistant Attorney General) John Treadwell,” he said. “They have completed their investigation and they are not pursuing further action.”
Cheers and claps followed Sleigh’s announcement.
“I got what is known as a target letter,” said Smith in the press briefing.
Smith and her organization assist individuals who take their concerns about wind and other environmental projects to the Public Service Board.
Sorrell said the PSB is a court of record and has all the powers of a trial court in determining matters within its jurisdiction.
The three-member PSB is made up of the chairman, James Volz, Margaret Cheney and Sarah Hofmann.
“Neither the PSB nor the Vermont Supreme Court have complained to this office regarding Ms. Smith’s conduct,” Sorrell said in a Monday statement. “The complainant has not alleged that any of Ms. Smith’s conduct has harmed any individual.”
In the December complaint, Smith was accused of regularly “providing legal advice to parties in proceedings before the Public Service Board, as well as helping to draft pleadings for those parties.”
According to Vermont law, practicing law without a license is in contempt of the Supreme Court. But there is no defined penalty for the crime.
“It is at the discretion of the court,” Treadwell said.
But prosecuting such cases is difficult, Sleigh said on Friday.
“This order identifies a criminal act but no punishment,” Sleigh said. “The United States Supreme Court has said that a penal law without an adequately defined penalty is void for vagueness.”
In the complaint against Smith, there were three allegations: She sought to represent individuals in proceedings before the PSB; she sought or obtained attorney compensation from the town of Morgan; and she consulted with and prepared and filed pleadings for people in PSB proceedings.
At Monday’s briefing, Smith said she never represented anybody.
“I am simply helping citizens struggle through an absurd process,” she said. “I am very curious why the AG’s office ever gave this legs.”
Sorrell said the definition of practicing law without a license is a 54-year-old definition and does not take into account an advocacy role.
“Any definition of the practice of law must recognize the diversity of advocacy before different forums at the state and local levels,” Sorrell said. “It should not abridge First Amendment rights, and should ensure that Vermonters have access to justice.”
Sorrell said the investigation revealed that Smith sought to intervene in a matter pending at the PSB on behalf of Vermonters for a Clean Environment. “The Vermont Supreme Court has recognized that in certain circumstances non-attorneys may represent organizations in judicial proceedings.” Sorrell said. “The record reveals that the PSB offered Ms. Smith and her organization the opportunity to file a friend of the court pleading in the matter. Thus, the PSB clearly did not oppose Ms. Smith’s participation as a nonparty.”
Regarding the complaint that Smith sought or obtained attorney compensation from the town of Morgan, Sorrell said “the investigation establishes that at no time did Ms. Smith represent herself to be an attorney or seek compensation of any kind from the town as an attorney or otherwise.”
Sorrell said his office considers the matter closed.
During the briefing, Smith said her organization might consider further legal action on the matter.
“We want to know what constitutes unlicensed practice of law,” she said. “What does that mean? We need clarification.”
Additionally, Smith thanked her supporters, Sleigh and the complainant.
“I want to thank the people who brought the complaint to the AG’s office and thank the AG for following up on this,” she said. “This is not the end, this is the beginning. There is too much secrecy. We need transparency. We need to know. We need to be a part of this energy revolution.”