Decisions Affecting the Powers and Duties of Attorneys General

Emily Myers, NAAG Antitrust Counsel and Powers and Duties Counsel

Emily Myers, Antitrust and Special Projects Counsel

Cases

Kentucky—Attorney General Has Independent Authority to Investigate Crimes Involving Controlled Substances.

As reported earlier (NAAGazette Vol. 6, No. 6-7), two Kentucky appellate court decisions limited the attorney general’s jurisdiction to investigate drug trafficking in a county without a request from the local prosecutor. The Kentucky Supreme Court has overturned those decisions.

Defendants in two separate cases sought to dismiss counts of trafficking in a controlled substance, arguing that the attorney general did not have jurisdiction to conduct an investigation within the relevant counties because local law enforcement was not involved in the investigation, and the attorney general was not invited by the local prosecutor to participate, as required by Kentucky statutes. The district court denied his motion, agreeing with the attorney general that the investigation was within his common law and statutory powers. The Kentucky court of appeals reversed the trial court. The court analyzed Kentucky’s statutes, which provide that the attorney general has all common law powers except when modified by statute. The court concluded that the legislature had determined that the attorney general did not have “the common law power to investigate and prosecute cases at will” in light of Ky. Rev. Stat. ¿15.200, which states:

(1) Whenever requested in writing by the Governor, or by any of the courts or grand juries of the Commonwealth, or upon receiving a communication from a sheriff, mayor, or majority of a city legislative body stating that his participation in a given case is desirable to effect the administration of justice and the proper enforcement of the laws of the Commonwealth, the Attorney General may intervene, participate in, or direct any investigation or criminal action, or portions thereof, within the Commonwealth of Kentucky necessary to enforce the laws of the Commonwealth.

Because none of the specified officials had requested that the attorney general investigate this matter, the court of appeals remanded the case to the trial court for a determination as to whether the evidence gathered in the investigation could be used. In reaching this decision, the court distinguished the power to prosecute from the attorney general’s power to bring cases to protect the public interest, which is very broad under Kentucky law.

The Kentucky Supreme Court stated its “strong disagreement” with the appellate court’s decisions, stating that under its reasoning, “independent OAG investigations, as well as those in conjunction with other law enforcement entities, would be equally prohibited unless the mandates of KRS 15.200 were properly invoked.” The Supreme Court first analyzed the general jurisdictional statute for controlled substances violations, which provides that the various city, county and Commonwealth attorneys, “and the Attorney General, within their respective jurisdictions, shall enforce all provisions of this chapter.” The Supreme Court held that this phrase meant, for the attorney general, the entire state.

The Court noted that the attorney general’s authority to prosecute statewide is clear, but found that the attorney general’s statewide investigatory authority was a matter of first impression. The court held that K.R.S. ¿15.200 is not a limit on the attorney general’s independent investigatory authority, outside of grand juries and prosecutions. The Supreme Court also looked at other Kentucky statutes, including those that designate the attorney general as the “chief legal officer” of the state, and those that permit the attorney general to designate investigative personnel as “peace officers.”

The Supreme Court then turned to the common law authority of the attorney general, restating its conclusion from an earlier case that the attorney general “should have all the powers then recognized as belonging to it, except so far as those powers were limited by statute.” The Supreme Court noted that the attorney general’s office is an investigatory body, and noted that the attorney general had described an expansive role for attorneys general going back to Elizabethan England. However, the Court held, “The OAG’s investigative authority is not plenary and must comport with relevant criminal and civil statutory directives. In other words, although such investigative power may no longer be in full Elizabethan plume, it is still a feather in the Attorney General’s cap.” Commonwealth v. Johnson, 2014 Ky. LEXIS 87 (Ky. Feb. 20, 2014).

Louisiana—Attorney General Parens Patriae Action Not Removable Under Class Action Fairness Act.

The Louisiana attorney general brought a parens patriae action in state court against a points-based vacation club alleging violations of Louisiana’s Unfair Trade Practices Act and promotional contests statutes. The attorney general sought rescission of the club memberships and restitution of the fees paid by Louisiana citizens who participated. Defendants removed the case to federal court, alleging that it was a class action or mass action subject to the Class Action Fairness Act (CAFA). The state moved to remand the case to state court, citing Mississippi ex rel. Hood v. AU Optronics, discussed in an earlier article (NAAGazette Vol. 8, No. 2.)

The defendants argued that Hood does not apply because Louisiana statutes and rules require that the state assert a class in this case, in order to rescind all of the membership agreements. In Hood, there was no Mississippi statute or rule that allowed the state to assert a class. The state argued that the Louisiana consumer protection statutes were not analogous to class actions because 1) they require an opt-in by consumers, rather than an opt-out, as is typical of a class action; 2) the attorney general is not the representative of the individuals harmed by the conduct; and 3) the Louisiana consumer protection statute does not require any notice to potential class members.

The court first determined that the attorney general’s action was not a mass action because Louisiana was the only named plaintiff, and the applicability of CAFA to parens patriae actions characterized as mass actions is not in dispute after Hood. The court then turned to the question of whether this parens patriae case was a class action. The court first reviewed Hood and concluded that a class must be asserted (rather than assumed or implicated) in order to fall under the class action prong of CAFA. The court then held that a parens patriae action brought under the Louisiana Unfair Trade Practices Act (LUTPA) was not a class action. Past Louisiana case law held that the attorney general could bring a LUTPA action as a class action, but that was merely “one method” of proceeding under LUTPA, which the attorney general might choose “for the procedural safeguards it offers.” In this case, “the attorney general . . . chose not to bring a class action, as the attorney general was entitled to do. Considering the language of CAFA—as well as Hood—it would be inappropriate to allow the Defendants to alter that choice.” The case is not removable under CAFA, and was remanded to state court. Louisiana v. Zealandia Holding Company, 2014 U.S. Dist. LEXIS 48356 (D. La. April 8, 2014).

Pennsylvania—State Agency Communications Not Protected by Attorney-Client Privilege from Disclosure to Attorney General in Criminal Investigation.

In a significant case addressing evidentiary privileges in the context of state agencies and state attorneys general, the Pennsylvania Supreme Court affirmed a trial court decision that there was no attorney-client or work-product protection for documents sought by the attorney general from a state agency during a criminal investigation.

The Pennsylvania attorney general convened a grand jury for a criminal investigation of the procurement practices of the state’s Turnpike Authority. The attorney general sought documents from the Turnpike Authority, a state agency with its own in-house counsel. The Turnpike Authority declined to produce some of the documents on the grounds that they were protected by attorney-client and work-product privilege. The district court judge found that the attorney-client privilege did not apply and ordered production of the documents. Because a grand jury was involved, the case was appealed directly to the state supreme court, which affirmed the trial court’s decision.

The Commission argued that the Pennsylvania Judicial Code recognizes evidentiary privileges and makes no distinction between government or private attorneys, so those privileges apply equally to government attorneys and clients. As support for this argument, the Commission noted that the state’s Right to Know Law excludes from production records “protected by a privilege.” Although the Commonwealth Attorneys Act provides that the attorney general “shall have the right to access at all times to the books and papers of any Commonwealth agency necessary to carry out his duties under this act,” it does not explicitly waive the evidentiary privileges. The attorney general argued that application of the privilege to state agencies would harm the public interest because “government lawyers have additional obligations that set them apart from privately retained counsel, including the duty to act in the public interest and rectify wrongful official acts where necessary.” Because a state agency’s counsel is paid with public funds, it would be “unseemly to use those funds to permit a public official to conceal from the taxpayers otherwise relevant evidence of wrongdoing.” The attorney general also argued that the state itself, rather than the agency, is the “client” in this context.

The Supreme Court began its analysis by stating that its ruling “should be shaped by the unique role of government lawyers who advise public officials and agency employees, who in turn find themselves subject to grand jury investigations.” The court cited several federal precedents holding that there is a general duty of public service that favors disclosure over concealment because “their duty is not to defend clients against criminal charges and it is not to protect wrongdoers from public exposure. . .” In this case, according to the court, “the ‘client’ is not simply the agency or the individual employees of the agency, or the public officials themselves, but rather the public, whose money funds their operations, and whom all of these individuals serve.” The Supreme Court therefore held,

To hold that the Commission itself is the client entitled to claim the privilege in the face of a duly-authorized grand jury investigation by the Commonwealth government is tantamount to concluding that the Commission is independent of the Commonwealth government, is beholden only to itself and, although the Commission is ultimately funded by the public through a variety of means established by the General Assembly, the Commission need not account for its expenditures and operations to the Commonwealth's citizens, who are represented, in this instance, by the OAG. In our view, this position obviously cannot prevail.

In re Thirty-Third Statewide Investigating Grand Jury, 2014 Pa. Lexis 426 (Pa. Feb. 18, 2014)

Vermont—Attorney General’s Consumer Protection Case Against Patent Assertion Entity Remanded to State Court.

The Vermont attorney general brought a consumer protection action against MPHJ, a patent assertion entity, alleging that MPHJ sent letters to Vermont businesses and non-profit entities containing threatening false and misleading statements. Defendant removed the case to federal court and the attorney general sought remand. The federal district court remanded the case.

MPHJ is an entity that holds several patents associated with scanning of documents to e-mail. MPHJ sent a series of three letters to a number of Vermont businesses and non-profits, alleging that MPHJ had reason to believe the businesses were infringing MPHJ’s patents, that many businesses had responded positively to its request for licensing fees, and that the business should license the patents at a rate of $900-$1200 per employee. If the business did not respond, it received a second and third letter stating that because it had not responded, MPHJ assumes that it is infringing the patent and if MPHJ does not receive a response within two weeks, MPHJ will file a complaint (which is included in the letter) against the business. The attorney general alleged that these letters were false, deceptive and misleading in violation of the Vermont Consumer Protection Act(VCPA). The attorney general sought injunctive relief, restitution, civil penalties costs and fees. MPHJ sought removal on grounds of 1) federal question jurisdiction because the case involved the validity, infringement and enforcement of patents and 2) diversity jurisdiction because the state brought the suit on behalf of Vermont businesses, who are therefore the real party in interest. The attorney general argued that there was no subject matter jurisdiction because the consumer protection claims are not based on the validity of MPHJ’s patents and that there was no diversity jurisdiction because the state was the real party in interest.

The court first described the tests for subject matter jurisdiction in cases involving patent law: The court must ask whether the federal patent law issue is “(1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” The court held that patent law issues are not “necessarily raised” by the state’s claims here. “The State’s claims do not challenge the validity or scope of MPHJ’s patents nor do they require any determination of whether infringement has actually occurred.” The court held, “Federal patent law does not appear on the face of the complaint and the State may prevail on its VCPA claims without reliance on the resolution of a federal patent question. As a result, federal law is not “necessarily raised” on the face of the complaint, and federal question jurisdiction cannot be established here.” Even though MPHJ may raise preemption as a defense, the patent law question does not appear in the complaint, so patent law is not “necessarily raised.” Nor was the patent question “substantial.” The court held, “As the decision in this case would have no precedential effect on federal law—and, indeed, would not even require a determination of the validity of MPHJ’s patents—it would not have an unacceptable impact on the federal patent system such to demand federal jurisdiction.”

Turning to diversity jurisdiction, the court held that the state is the real party in interest. According to the court, “the fact that the State brought the VCPA action on behalf of itself, and not on behalf of private businesses, is made clear by the relief sought—a statewide injunction and civil penalties that would be unavailable to private litigants. The requested remedies demonstrate that the State brought the case on behalf of itself and not individual businesses.” The court remanded the case to state court. Vermont v. MPHJ Technology Investments, No. 2:13-cv-170, (D. Vt. April 15, 2014).

Colorado—Office of the Attorney General Is Law Enforcement Agency for Purposes of Juror Challenges

A defendant sought to challenge for cause the selection as a juror of an assistant attorney general in the Colorado Attorney General’s Office. The court did not allow the challenge for cause, so the defendant used one of his peremptory challenges and eventually used up all his challenges. According to a prior Colorado Supreme Court decision, automatic reversal is the remedy for any erroneous ruling on a challenge for cause adversely impacting the defendant’s ability to shape the jury through peremptory challenges. The state supreme court reversed that ruling and held that the error must be shown to be outcome-determinative. The attorney general also sought review of the court of appeals ruling that the challenged assistant attorney general was a paid employee of a law enforcement agency and therefore should have been removed for cause.

Under Colorado law, “a trial court is therefore statutorily required to sustain a proper challenge for cause to a prospective juror who is a compensated employee of a public law enforcement agency.” The Supreme Court held that the attorney general’s office was such an agency because 1) it had been specifically included in a number of different statutory provisions defining the term “law enforcement agency; and 2) the court had “treated the office of the state attorney general as an archetype of a ‘law enforcement agency’” in past cases. The court held, “Where the prospective juror’s employer in this case had been both expressly identified as a law enforcement agency by statute and had been expressly acknowledged by this court in published opinions as a law enforcement agency, the defendant clearly had no obligation to produce additional evidence in support of his challenge.” People v. Novotny, 2014 CO 18 (Colo. 2014).

Colorado—Attorney General’s Action Under State Consumer Protection Law is Equitable Action

A defendant charged with violations of Colorado’s consumer protection statute challenged his bench trial, at which he was convicted, argued that he was entitled to a jury trial because the relief sought was economic in nature. The attorney general sought restitution, disgorgement and civil penalties, which the defendant argued classified the case as one brought in law, rather than equity. Citing decisions from other jurisdictions, the appellate court concluded the “principal thrust is to prevent unfair or deceptive acts or practices in trade or commerce” so the statute is “equitable in nature, in the sense that it seeks to prevent prejudicial conduct rather than merely compensate such damage as may flow therefrom.” Therefore, the case is equitable, and defendant is not entitled to a jury trial. People v. Shiffrin, 2014 COA 14 (Colo. App. 2014)

Louisiana—Attorney General May Hire Attorneys on Contingent Fee Basis

A local authority, the Southeast Louisiana Flood Protection Authority-East, filed suit against a number of oil and gas companies to recover the costs of repairing damage to Louisiana’s coastline. As required by law, the attorney general reviewed and approved the authority’s resolution to hire attorneys. Those attorneys were hired on a contingent fee basis. The Louisiana Oil and Gas Authority filed suit, challenging the attorney general’s approval of the attorney fee arrangements. Under a 1997 state supreme court ruling, the attorney general is generally prohibited from entering into a contingency fee contract unless that contract is approved by the Legislature. The state argued that the attorney general should be able to enter into contracts like this one, where the contingency portion would be money awarded by a judge for attorneys’ fees and expenses, separate from damages awarded to the state. The district court agreed, holding that the attorney general is authorized to enter into a contingent contract when the terms provide that the attorneys will be awarded fees only through order of the court, and the state will not be responsible for any costs or fees. Characterizing the suit as “frivolous” at the hearing, the judge taxed the defendant with costs. Louisiana Oil & Gas Ass’n v. Caldwell as Attorney General, No. C626798 (19th Jud. Dist., East Baton Rouge La. Mar. 21, 2014)

Texas—Attorney General Has Authority to Bring Election Law Charges.

A losing candidate for the Justice of the Peace Office accused the winning candidate of voter fraud. The Dallas County commissioners court requested that the attorney general investigate the allegations and the attorney general presented the case to a grand jury in another county, which indicted the winning candidate and members of his family. The attorney general is authorized to “prosecute a criminal offense prescribed by the election laws of this state” under the Texas Election code. The state prosecuted the defendant and he was convicted of illegal voting and sentenced to five years in prison. Among other challenges to his conviction, the defendant argued his prosecution in Rockwall County by the attorney general violated the separation of powers provision of the Texas Constitution because the Texas Election Code “impermissibly vests the AG, a member of the executive branch, with criminal prosecutorial authority, although the constitution vests that power in the county and district attorneys, members of the judicial branch.” The separation of powers provision may be violated when one branch of government assumes a power that is more properly attached to another branch; or when one branch unduly interferes with another branch, preventing it from exercising its proper power. The defendant argued that both were at issue here.

The state constitutional provision creating the office of attorney general provides that the attorney general shall “perform such other duties as may be required by law.” The court stated that this provision “provides the specific exception required to allow the legislature to alter the constitutional duties of the county and district attorneys.” The court also noted that Texas courts have not always considered the attorney general to be in the executive branch, nor the county and district attorneys in the judicial branch. Texas case law states that the legislature could not take away from the county attorneys “so much of their duties as practically to destroy their office.” That is not the case here, because the attorney general’s authority to prosecute election law cases has simply been added to the existing authority of the district attorneys. The attorney general argued, and the court agreed, that the legislature was simply allowing the attorney general to “’step in when election violation cases may be ‘politically sensitive’ at the local level,” which may have been the case here. Medrano v. Texas, 2014 Tex. App. LEXIS 860 (Tex. App. 5th Dist.. Jan. 27 2014)

Multistate—State Agencies Are Third Parties for Discovery Purposes

A number of states filed consumer protection cases against the rating agency Standard & Poor’s in their state courts, seeking injunctive and equitable relief, but not damages. The cases were removed by the defendants to federal court, and the states have moved for remand. The court is considering those motions. In the meantime, discovery is proceeding, and the defendants have sought discovery from state agencies under FRCP 34, which governs discovery from parties. The states argued that state agencies are not parties to this action, because the attorneys general are not seeking damages on their behalf, and in fact, some states are not able to represent state agencies in law enforcement proceedings. The court agreed with the states, holding that state agencies should be treated as non-parties for purposes of discovery. In re Standard & Poor’s Rating Agency Litigation, No. 13-MD-2446 (S.D.N.Y., Feb. 26, 2014)

Amicus Briefs and Other Advocacy

West Virginia—Letter from 36 Attorneys General Opposing Legislation to Limit Attorney General Authority

The West Virginia Legislature considered legislation, HB 4490, that would change the ethics rules for the West Virginia Attorney General’s Office. Pursuant to HB 4490, the attorney general would have to recuse him or herself from any case in which he or she had a conflict of interest, which was defined as the attorney general or a family member having received compensation from a party to any cause under the jurisdiction of his or her office within the past five years; or asserting “any legal position . . . in a legal proceeding . . . that is inconsistent with the legal position taken by the state officer, board, agency or other political subdivision whom his or her office is representing.” The attorney general would be required to appoint outside counsel in this case, who would not be supervised by the attorney general’s office. HB 4490 also would prohibit the attorney general from representing any state entity if the attorney general asserts any legal position . . . that is inconsistent with the legal position ever taken by the state entity. Thirty-six attorneys general sent a letter to legislative leaders noting that these provisions would be unprecedented. In particular, they noted that a state attorney general frequently must represent state agencies with different and conflicting viewpoints, and that representation has been approved by a number of state courts. The legislation ultimately failed to pass. The letter is available on NAAG’s website at http://www.naag.org/assets/files/pdf/signons/Final%20WVA%20Legislature%20Sign%20On.pdf

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