“Statutory, Not Inherent” – Vermont Supreme Court Recognizes an Implied Right of Statewide Officers to Seek Mandamus under 3 V.S.A. § 159 but Declines to Police the Substance of Attorney-General Opinions

1. Introduction

In Office of the Auditor of Accounts v. Office of the Attorney General, 2025 VT 36, the Supreme Court of Vermont was asked to referee a rare intra-executive dispute: could the elected State Auditor compel the elected Attorney General to answer specific legal questions and simultaneously retain outside counsel to sue her office? The case arose during the Auditor’s examination of a Burlington Tax Increment Financing (TIF) district, where ambiguities in the governing statutes prompted the Auditor to seek guidance from the Attorney General (“AG”). Dissatisfied with the AG’s response, the Auditor filed a three-count complaint seeking (i) mandamus compelling answers, (ii) declaratory relief on the scope of the AG’s duty to advise, and (iii) a declaration that he could hire his own lawyers to sue the AG. The trial court dismissed all claims and denied fees.

On appeal, the Supreme Court delivers a nuanced opinion: it confirms that statewide officers possess only legislatively conferred powers, yet it also recognizes an implied statutory power under 3 V.S.A. § 159 to sue for mandamus when the AG altogether refuses to supply legal advice. However, the Court refuses to second-guess the content of advice actually given, dismisses the specific mandamus and broader declaratory counts for lack of a live controversy, and upholds the denial of attorneys’ fees. The decision thus threads a separation-of-powers needle—ensuring that the AG cannot completely stonewall her clients while preserving her professional discretion in how she answers.

2. Summary of the Judgment

1. Mootness Reversed: The Court reinstates the Auditor’s claim that he may retain counsel and sue, holding the controversy remains live because the AG disputes payment of that counsel.
2. Inherent-Power Theory Rejected: Relying on history, constitutional structure, and precedent, the Court affirms OneCare (2022) and reiterates that the Auditor has no free-floating constitutional powers.
3. Implied Mandamus Authority Recognised: The Auditor is statutorily authorised to seek mandamus to enforce § 159 because he alone possesses the right allegedly denied (legal advice).
4. No Mandamus Here: Mandamus lies only for a refusal to act. Because the AG supplied legal advice—explaining why other entities, not she, held binding authority—the Court finds no “virtual refusal” and affirms dismissal under Rule 12(b)(6).
5. No Broader Declaratory Relief: Allegations that the AG adopted a “policy” of silence were contradicted by record letters; thus no ripe controversy existed.
6. Rule 54 Fees Properly Denied: Rule 54 is a procedural vehicle to shift fees to opposing parties; it cannot create a right for a litigant to pay its own counsel.

3. Analysis

3.1 Precedents Cited and Their Influence

• Vt. State Auditor v. OneCare ACO, LLC, 2022 VT 29 – cornerstone precedent holding that the Auditor has only statutory powers. The Court preserves this ruling and rejects the Auditor’s request to overturn it.
• Dean v. Bates, 36 Vt. 387 (1863) – cited by the Auditor for the proposition that constitutional officers may sue “incident to their office.” The Court distinguishes Bates as limited to bond enforcement and not a blanket right to litigate.
• Grout v. Gates, 97 Vt. 434 (1924) – earliest mandamus clash between Secretary of State and Auditor; used to illustrate that mandamus lies between officers but not to justify fee awards.
• Yes on Prop 200 v. Napolitano, 160 P.3d 1216 (Ariz. Ct. App. 2007) – persuasive authority employed to show courts should not review the correctness of AG opinions via mandamus.
• Historic Council-of-Censors materials (1785, 1855) – mined to show legislative supremacy over auditing functions.

3.2 The Court’s Legal Reasoning

1. Historical-Structural Inquiry. The Court traces 18th- and 19th-century Vermont records to show that auditing powers have always been legislatively channeled, and the 1883 constitutional amendment making the Auditor an elected officer changed selection but not authority.
2. Separation of Powers. Allowing an officer to declare unbounded “auditing” powers would place him beyond checks and balances. The Constitution instead vests each officer with only delegated authority.
3. Statutory Construction of § 159. “Shall advise” imposes a mandatory duty to respond but not a duty to provide the precise answers demanded. Advice may include directing the questioner to the proper decisional body.
4. Mandamus Framework.
   • Claimant must show a clear legal right, ministerial duty, and no adequate alternative.
   • Because advice entails professional discretion, mandamus is limited to outright refusals, not disagreements over substance.
   • The Auditor’s own exhibits showed that advice was given; therefore no refusal.
5. Implied Right to Sue. Even without an express litigation grant, § 159 implicitly authorises officers to enforce the statute through mandamus because they alone suffer the injury when advice is withheld.
6. Fee-Shifting Logic. Rule 54 enables prevailing parties to claim fees from opponents. Here the Auditor did not prevail, and his contract with counsel is irrelevant to Rule 54’s operation.

3.3 Potential Impact of the Decision

• Clarified Boundaries – Statewide officials now know they can sue the AG for a failure to respond, but cannot use courts to edit the AG’s legal reasoning.
• Professional Discretion Protected – The AG’s ability to craft nuanced or conditional advice without judicial micromanagement is preserved.
• Legislative Supremacy Reaffirmed – Any expansion of the Auditor’s audit powers, or other officers’ litigation powers, must come from statute, not implied constitutional penumbras.
• Mandamus Doctrine Refined – Vermont joins other jurisdictions in cabin­ing mandamus to absolute refusals, referencing Yes on Prop 200.
• Rule 54 Guidance – The opinion warns litigants that Rule 54 is not a mechanism for intra-agency bookkeeping or for compelling the State to fund one’s own counsel absent prevailing-party status.

4. Complex Concepts Simplified

• Mandamus (Rule 75): A court order compelling an official to perform a clear, ministerial duty. It is not available to correct allegedly “wrong” discretionary calls.
• Ministerial vs. Discretionary Duty: Ministerial duties involve no judgment (e.g., issuing a warrant when prerequisites are met). Discretionary duties require professional or policy judgment (e.g., framing legal opinions).
• Separation of Powers: Each branch (legislative, executive, judicial) – and sometimes distinct executive offices – must not intrude upon the core functions of another. Courts avoid becoming “back-seat lawyers” for the executive.
• Mootness vs. Ripeness:
  • Mootness – a dispute that was live but no longer needs court resolution.
  • Ripeness – a dispute that is premature or hypothetical.
• Rule 54(d) Fees: A procedural rule permitting the prevailing party to seek costs and fees from the other side when a statute, contract, or judicial doctrine authorises fee-shifting.

5. Conclusion

Office of the Auditor v. Office of the Attorney General is both a civics lesson and a procedural roadmap. First, it cements the principle that constitutional officers in Vermont wield no inherent plenary powers; their remit is set by statute. Second, it ensures those officers are not left helpless—if the Attorney General simply refuses to talk, mandamus lies. Third, it draws a firm line against using mandamus (or courts generally) to grade the AG’s homework. Finally, the decision clarifies the narrow office of Rule 54 attorneys’ fees and disclaims any free-floating entitlement to have the State bankroll intra-executive litigation.

Going forward, statewide officials should:

• Submit questions in writing to the AG and allow a reasonable period for response;
• Document genuine refusals (not mere disagreements) before considering mandamus;
• Recognise that retaining outside counsel is permissible where statutory rights require enforcement, but fee recovery remains governed by ordinary prevailing-party rules and appropriations controls; and
• Seek legislative clarification if broader sweep of authority is desired.

The Court’s decision thus balances accountability, professional independence, and the constitutional demand that no officer, however well-intentioned, operate unchecked.