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October 15, 2010

DUI Lawsuit Tossed From Federal Court

U.S. District Court Judge Christina Reiss threw out portions of a lawsuit pertaining to  whether the state police played political favorites by releasing copies of some roadside video stops and not those of others.

At an hourlong hearing in federal court in Burlington, Reiss determined that the court didn't have jurisdiction over whether the state violated Vermont's public-records laws, but she did reserve the right to rule on other aspects of the complaint brought by attorney John Franco. Largely, she said she'd be willing to determine whether the state ran afoul of the First Amendment by playing political favorites in releasing the records related to one person and not another.

At issue in the case is whether Department of Public Safety Commissioner Thomas Tremblay violated the law by releasing the roadside traffic stop of Democrat Sen. Peter Shumlin and not a roadside video stop of Republican Auditor Tom Salmon. Tremblay argued that Shumlin's stop was a civil violation and Salmon's a criminal violation, therefore he was bound by law to keep the DUI stop secret.

That's because state law allows any records that identify the “detection and investigation of crime” to remain exempt from public inspection.

However, Franco argues, state law offers this caveat: “Records relating to management and direction of a law-enforcement agency and records reflecting the initial arrest of a person and the charge shall be public."

Franco believes a DUI stop, under state law, is a record reflecting an initial arrest. But he'll have to file a lawsuit in state court to argue his case.

After the hearing, Franco told reporters he will file a suit in Washington Superior Court in Montpelier and hopes a hearing can be held before November 2.

Franco is a longtime friend and supporter of Democrat Doug Hoffer, who is challenging Salmon for the auditor job this fall. But Franco said he is not doing this for political reasons, though he admitted he thinks the tape could shine light on Salmon's judgment.

Franco has said he's conducted some unpaid research for Hoffer, and he donated $250 to Hoffer's campaign earlier this year.

The hearing occurred the same day the Burlington Free Press identified the trooper who tried to void Shumlin's speeding ticket. Sgt. Michael O'Neil, who is also the president of the Vermont State Troopers' Association, told the Free Press in a letter that he is one of the two troopers who tried to void Shumlin's ticket.

According to court records, Shumlin paid the $152 fine before O'Neil and one other trooper tried to fix the ticket for the senate president.

O'Neil stepped forward because he learned that Tremblay was going to release his name to Charlotte attorney Brady Toensing, whom the Free Press said represented Dubie in a 2006 public-records request case.

Toensing, a partner in a well-connected Washington, D.C., law firm, has delved into public-records requests in Vermont politics before — notably, asking former Democratic Auditor Elizabeth Ready and 2004 Democratic Lt. Gov. candidate Matt Dunne for various materials, including phone logs and schedules. Toensing's requests unveiled the fact that Ready had fabricated parts of her public biography.

In 2008, Toensing donated $1000 to Dubie's reelection campaign, and provided an in-kind contribution of $922 in "event expenses" to the campaign.* (see note below) He lives in Charlotte.

Tremblay's decision to release O'Neil's name is notable because he had so far refused to name the troopers involved, saying only that the matter was under investigation and therefore he couldn't comment.

"This has just more than a whiff of duplicity," Franco noted about the timing of the release of O'Neil's name.

One week ago at a press conference with Lt. Gov. Brian Dubie, Gov. Jim Douglas also reiterated that he believed the state was bound by personnel rules and collective-bargaining agreements to keep the information secret.

When asked if he would release the names of the troopers, since Dubie's campaign had asked Shumlin to reveal the name, Douglas replied: "I don't know if we can. We've got personnel rules and statutes that have to be respected, and personnel and disciplinary processes in state government have certain restrictions and that may not be possible."

"There is one person who is not restrained and that is Peter Shumlin," Douglas added.

Douglas said at the time he knew little about the investigation.

"I gave Commissioner Tremblay one piece of advice when I first heard of this case," said Douglas, "and that is to treat it as he would any other."

* This post has been corrected from the original - to identify which election cycle Toensing's contributions occurred and to correct the value of the in-kind contribution.

Lesson learned here would be the following.
Do not drink and drive.
Do not drive over the speed limit.
Follow above rules and put Franco out of business.

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