MONTPELIER >> The attorney general's office has closed its criminal investigation of renewable energy critic Annette Smith, opting not to weigh in on whether she practiced law without a license because it said the only relevant case law is too outdated.
In a news release Monday, Attorney General William Sorrell's office did not clearly exonerate Smith of accusations that she performed duties normally reserved for attorneys. Rather, it said the definition of "practicing law" must recognize the various forms of advocacy practiced today.
Lawyer Ritchie Berger, of the Burlington-based firm Dinse, Knapp and McAndrews, acknowledged Monday that he was the person who filed the complaint prompting the investigation. He said he acted on his own behalf "as a licensed attorney and officer of the court." Smith has made public a letter in which Berger identified himself last fall as representing energy developer David Blittersdorf, a frequent target of Smith's activism.
"It is worth noting that the office of the attorney general did not dispute the accuracy of my concern that Ms. Smith had prepared and filed pleadings for persons in (Public Service Board ) proceedings," Berger wrote in a statement Monday afternoon.
The attorney general's office also did not dispute that such preparations and filings appear to violate precedent established by the state Supreme Court, Berger wrote.
In Vermont, a person is considered to have practiced law in "giving ... legal advice and counsel, and the preparation of legal instruments and contracts of which legal rights are secured," according to case law Berger cited in his complaint.
That case is the most recent of a scant handful on which Vermont's case law on the subject relies. It dates from 1962, when then-Attorney General Charles Adams successfully prosecuted criminal charges against Maynard Welch.
But regardless of the case law, the quasi-judicial Public Service Board doesn't appear to mind Smith's practices, the AG's news release stated.
The office's statement largely dispensed with case law, which asserts broad terms for the crime of practicing law without a license, and pointed instead to modern examples where non-attorney advocates assist others before legal boards.
For instance, PSB rules allow organizations, but not individuals, to be represented by someone other than an attorney, the statement said. Sorrell's office also described as evidence in Smith's favor the fact that one of the parties she helped — the town of Morgan — had not paid her for her services. The town had intended to send money to Smith's nonprofit, however.
Smith said last week that Morgan officials intended to donate $2,500 to her group Vermonters for a Clean Environment, after she helped the town in a case against a renewable energy developer. The town chose not to make the donation after another attorney from Berger's firm filed public records requests, asking that town officials divulge their relationship to Smith.
Jonathan Treadwell, the chief of the attorney general's criminal division, said Monday it would have been an issue if Smith had billed the town for legal representation. But he didn't speculate on what would have occurred if Morgan had gone through with the donation.
"If a person submits an invoice indicating they're seeking payment for services rendered for an attorney, and they're not an attorney, that would be a problem," Treadwell said in an interview.
Smith said she's doing no such thing. "I do not represent anybody. I don't talk to the court. ... I'm simply helping citizens struggle through what is an absurd process."
In a news conference Monday morning at the Statehouse, Smith said she is seeking from the court system some confirmation that she's not violating the law by preparing documents for Vermonters who say they're representing themselves before the PSB.
Smith's attorney accused the attorney general's office of conducting political machinations against her by investigating issues raised in the complaint. Treadwell said the investigation was neither politically motivated nor out of the ordinary.
"We followed the procedure we have followed whenever we have received one of these complaints in the past," Treadwell said.
Smith said she's still suspicious. "I think they dropped (the case) because it's an embarrassment at this point," she said. Her lawyer had threatened to sue if the investigation went forward.
She said unspecified people have told her that her emails and phone are likely to be tapped.
According to her, members of the public are effectively shut out of the Public Service Board process by their apparent need for an attorney for effective representation. People turn to her because attorneys cost too much and because few attorneys will take their case, she said.
Her small organization is overshadowed by its competitors, Smith told supporters Monday, stating that Vermont Public Interest Research Group possesses many millions in funding, and over a dozen staff members, while her own organization runs on about $125,000 with only one full-time staffer.
Yet Vermonters for a Clean Environment, she said, can succeed and has succeeded in many areas, despite a spotty record in past legal proceedings.
"We can do so much more with so much more money — feed the machine, and we will be doing more," Smith said to a restive crowd at Monday's press conference. "It's all good, because we the people come together, Vermonters for a Clean Environment; we've been doing it on a lot of different topics: we do not win in court, but we certainly do win out in real life."