Decisions Affecting the Powers and Duties of State Attorneys General

Emily Myers, Antitrust Counsel

Emily Myers, Antitrust and Special Projects Counsel

This is another in our series reporting on recent decisions from across the country affecting the powers and duties of state Attorneys General.

Alabama

Attorney General Control Over Gambling Task Force

Cornerstone Community v. Riley, No. CV-2009-9000019 (Ala. Cir. Ct., Lowndes Cty., March 8, 2010). See related resource document.

The Alabama governor created, by Executive Order, a Gambling Task Force, for the purposes of “promoting and supporting uniform statewide enforcement of Alabama’s anti-gambling laws and to carry out the Alabama Constitution’s strong public policy against lottery schemes and illegal gambling.” The order created a special prosecutor to serve as the commander of the Task Force, who, in that capacity, had “statewide jurisdiction” to “conduct investigations, attend any regular, adjourned or special session of any circuit court . . . for the investigation of or the prosecution of any criminal case or the prosecution or defense of any case related to gambling activity in the State of Alabama.” The governor initially appointed a former district attorney to head the Task Force, pursuant to Ala. Code § 12-17-216, which provides for the appointment of supernumerary district attorneys who, “upon request of the Governor, the Chief Justice of the Supreme Court or the Attorney General” conduct investigations and prosecute criminal cases. The original “supernumerary” district attorney was later replaced as Task Force head by a current district attorney.

The Task Force conducted a raid on a facility and confiscated a number of electronic gambling machines and some money. No one from the Attorney General’s office or the county District Attorney’s office were on the Task Force. As a result of this raid, a declaratory judgment action was filed by the operators of the gambling facility, and a forfeiture action was filed by the Task Force. Both actions were filed in the Circuit Court for Lowndes County.

The court outlined the facts and upheld the execution of the search warrant that led to the seizure of property. The court then turned to the question of appointment of a special prosecutor to lead the Task Force. Alabama statutes and case law make it clear that the Attorney General, not the governor, “has the power to manage and control all litigation on behalf of the State of Alabama.” If the governor disagrees with the Attorney General, he or she can intervene in the case.

With respect to litigation brought by a supernumerary district attorney, the court concluded that the statute contemplated that the supernumerary district attorney would act under the supervision and control of the Attorney General. Because the Attorney General did not authorize the filing of the answer and counterclaim in the declaratory judgment action and the complaint in the forfeiture action, those filings must be “regarded as a nullity, just as if they had been filed by a private citizen who claimed to represent the state.” Similarly, although the current head of the Gambling Task Force is a currently serving district attorney, he too is subject to the control of the Attorney General. The court therefore held,

[T]he attorneys who have appeared for the Governmental Parties may not continue to represent these parties in the Declaratory Judgment Action, nor may they prosecute the Forfeiture Action, unless the Attorney General expressly ratifies what they have done up to this point and authorizes them to continue in this representation.

The court held that the Attorney General is under a duty to defend the state’s interest in these cases, and directed the Attorney General, by a certain date, to “…decide how the State’s interests are best represented in these cases.”

Connecticut

Qualifications for office of Attorney General

Formal Opinion 2010-1, issued to Susan Bysiewicz, February 8, 2010, available here.

Connecticut statutes provide that “[t]he Attorney General shall be an elector of this state and an attorney at law of at least ten years’ active practice at the bar of this state.” Conn. Gen. Stat. § 3-124. The Connecticut Constitution provides only that “[e]very elector who has attained the age of eighteen years shall be eligible to any office in the state.” Article Sixth, § 10. Connecticut Secretary of State Susan Bysiewicz asked for an Attorney General opinion as to the constitutionality of the statutory provision and the meaning of “active practice” in the statutory language. Bysiewicz sought the opinion both in her capacity as secretary of state and her capacity as a candidate for the office of Attorney General of Connecticut.

The Attorney General’s opinion analyzed “the history of the operative constitutional provision, including the historical constitutional setting and the debates of the framers; [citations omitted]” The office of Attorney General of Connecticut was originally created by statute in 1897, with the same provision at issue here. The Connecticut Constitution was amended to include the Attorney General as a constitutional officer in 1970. The Opinion concluded

[T]he framers of the 1970 amendment adding the Attorney General to the constitution did not intend Article Sixth, § 10, to abrogate the existing statutory scheme and reduce the qualifications for the Office of the Attorney General to solely being an elector who has attained the age of eighteen. Indeed, the very title “Attorney General” strongly implied that the office would be held by an attorney. In fact, it would be impossible for the Attorney General personally to perform the duties that the framers clearly envisioned, such as appearing for and representing the governor and other state officers in civil litigation, without being an attorney.

Concluding that the statutory requirements would likely be found constitutional by a court, the Attorney General’s opinion stated,

The fact that only an attorney can perform required duties, coupled with the long-standing statutory scheme in existence in 1970, leads to the conclusion that the framers must have intended to import the existing statutory duties and qualifications of the Office of Attorney General, and that Article Sixth, § 10, permitting any elector to be eligible for any office in the state, does not supplant the additional, existing statutory qualifications for the office of Attorney General.

Turning to the question of the meaning of “active practice” in the statute, the Attorney General’s opinion concluded that the phrase meant more than simply being a member of the bar for a period of 10 years. First, the Attorney General noted that statutes are to be construed so that no word is superfluous. Second, the General Assembly could have chosen another phrase, “member of the bar of the state of Connecticut,” which is used to describe the qualifications for certain judicial positions. Third, the Connecticut courts have interpreted the phrase “actual practice” in the context of permitting admission to the bar of Connecticut without examination, to mean more than simply having been a member of another state’s bar. Fourth, the phrase “attorney at law,” which appears in the statute, makes mere bar membership redundant. An attorney at law is by definition a member of the bar. The Attorney General concluded “the phrase “active practice” means more than simply being a member of the bar of the state in active status.”

The secretary of state has filed a declaratory judgment action in Connecticut Superior Court, in which the state and the state Democratic and state Republican parties have joined.

Iowa

Attorney General Not Disqualified from Prosecuting Employee of Iowa Film Office

Iowa v. Wheeler, Crim. No. SR235062 (Iowa Dist. Ct. Polk Cty. Crim Div., Mar. 4, 2010) See related resource document.

The former director of the Iowa Film Office (an agency within the Iowa Department of Economic Development) was charged criminally with non-felonious misconduct in office. Prosecutors alleged he failed to check the eligibility of an applicant for state film tax credits. Several other criminal cases against filmmakers who received credits are pending. The defendant sought to disqualify the Attorney General’s office pursuant to Iowa’s Rules of Professional Conduct, arguing that he was an employee of the Iowa Department of Economic Development; the Department was represented by the Attorney General, and that he therefore had an attorney-client relationship with the Attorney General which precluded the Attorney General from prosecuting him.

The court found that the defendant had no attorney-client relationship with the Attorney General’s office, because the client is the Iowa Department of Economic Development, not the individual employee. Similarly, the court found that none of the other employees of the Department of Economic Development who might be called as witnesses had an attorney-client relationship with the Attorney General’s office. The court found that the possibility that an attorney from the Attorney General’s office might be called as a witness was merely speculative and not sufficient to warrant disqualification. Finally, the court noted that the defendant had argued that the criminal case was brought solely in order to gain an advantage in the pending civil matters involving the Film Office. The court stated, “If that is in fact the case then Mr. Wheeler should pursue the appropriate channels set up by the Iowa Supreme Court to address ethical violations but under the present record there is no evidence that would support that assertion.”

Kentucky

Expansion of Attorney General’s Power to Seek Injunction

Comm. ex rel. Conway v. Thompson, 2009 Ky. LEXIS 290 (Ky. 2009)

In a case involving the Kentucky Department of Corrections’ decision to release a number of parolees early (because of a new state statute), the Kentucky Attorney General sought to enjoin the Department of Corrections actions. A Kentucky Supreme Court decision, Comm ex rel. Cowan v. Wilkinson, 828 S.W.2d 610 (Ky. 1992), held that the Attorney General did not have standing to seek an injunction in circumstances where he did not allege the violation of a “personal right.” The Kentucky Supreme Court overruled its earlier decision, holding

Having fully considered the law and the arguments of the parties, we now state categorically that we have no doubt that the Attorney General of the Commonwealth of Kentucky has standing to seek injunctive relief on behalf of the citizens of the Commonwealth . . .

The court noted that the Kentucky Attorney General has all common law duties pertaining to the office, except where abrogated by statute. The Attorney General thus has the power to bring “any action which he or she thinks necessary to protect the public interest, a broad grant of authority which includes the power to act to enforce the state’s statutes.” The court cited approvingly the dissent in the earlier case, which stated, “It is the personal right of the people as the body politic and not any personal right of the person holding the office of Attorney General that is being represented here. It is unreasonable to suggest that because the person with the official responsibility to seek protection on the people’s behalf has no personal stake in the outcome, there is no right of redress and no right to injunctive relief against the Governor's usurpation of power, if such has occurred.” The court concluded, “[W]e now hold that the Attorney General has a sufficient personal right in these types of cases by virtue of the office and the duties commensurate with that high office.”

Maryland

Impeachment of Attorney General

Letter to Honorable Don Dwyer from the Office of the Counsel to the General Assembly, March 8, 2010. See related resource document.

A delegate in the Maryland legislature sought an opinion from the Office of Counsel to the General Assembly (an office within the Attorney General’s office) as to the mechanism for impeachment of the Attorney General. Article V, Section 1 of the Maryland Constitution provides that the Attorney General is “subject to removal for incompetency, willful neglect of duty or misdemeanor in office, on conviction in a Court of Law.” Article III, Section 26 of the Maryland Constitution provides “The House of Delegates shall have the sole power of impeachment in all cases but a majority of members present must concur in the impeachment. . .”

The legislative counsel noted that the impeachment provision is procedural in nature, and has never been used against any official other than a judge. (Judges are expressly subject to impeachment under Article IV of the Maryland Constitution.) The legislative counsel then concluded that the impeachment section applies only to those officials to whom it expressly applies or as to whom there is no other specific means of removal. Because Article V, Section 1 expressly applies to the Attorney General, the more general impeachment provision does not apply to that office.

The legislative counsel reviewed the various constitutions enacted by the state, and noted that in none of them was the Attorney General subject to impeachment by the legislature. In addition, the Maryland Court of Appeals (the state’s highest court) has “consistently limited the power of the General Assembly to provide for removal of officers whose removal is provided for in the Constitution.” The legislative counsel stated, “It is my view that this limitation reflects the decision of the framers to protect the Attorney General…from the threat of removal based on simple disagreement with their decision.”

Turning to the mechanics of removal of the Attorney General, the legislative counsel noted that because removal of the Attorney General occurs only “on conviction,” criminal proceedings are required, and would need to be brought by the state prosecutor or the state’s attorney in the appropriate jurisdiction.

Michigan

Disqualification of Attorney General

People v. Waterstone, No. 294667 (Mich. Ct. App. Mar. 4, 2010). See related resource document.

After remand from the Michigan Supreme Court, the Michigan Court of Appeals reversed its previous decision (reported in the December NAAGazette Powers and Duties Update) and held that the Attorney General’s office was disqualified from prosecuting a judge for perjury because the office had earlier represented her in connection with a civil rights case arising out of the same facts.

In the course of the drug trafficking trial of Alexander Aceval, the assistant prosecuting attorney (APA) allegedly suborned perjury in order to protect the identity of a confidential informant. Judge Waterstone became aware of this perjury and knowingly allowed it to occur. After Aceval was convicted, and the perjury was discovered, Aceval sued Waterstone and others, alleging civil rights violations. The general counsel of the Michigan Supreme Court requested that the Attorney General’s office represent Waterstone, and an AAG from the Public Employment, Elections and Tort Division did so, speaking with Waterstone three times. The case was dismissed.

The Michigan Prosecuting Attorneys Coordinating Council asked the Attorney General to appoint a special prosecutor to investigate the alleged subornation of perjury. The Attorney General assigned two attorneys from the office’s Criminal Division. In March 2009, the Attorney General issued a multi-count felony indictment against Waterstone and others, alleging judicial misconduct with regard to allowing presentation of perjured testimony and ex parte communications with the prosecutor. Waterstone sought to disqualify the Attorney General’s office, claiming that its representation of her in the civil rights case and the current investigation were an inherent conflict of interest. The Court of Appeals determined that in this case, there was no actual conflict of interest requiring disqualification at this time. The ruling was appealed, and the Michigan Supreme Court remanded the case to the Court of Appeals for an immediate decision as to the disqualification of the Attorney General.

On remand, the Court of Appeals analyzed the case as one in the category of cases involving disqualification of a prosecutor for “conflicts arising out of a professional attorney-client relationship, including when the prosecutor has become privy to confidential information.” In those cases, the court examines “whether the prosecutor learned confidential information that he or she ethically may not use against the defendant and whether knowledge of that information may be imputed to other members of the prosecutor’s office.” In this case, the Attorney General himself was not involved in the case. The three assistant attorneys general involved did not have supervisory or policy-making authority, so disqualification of the entire office is not automatic. Instead, the court determines whether the attorney who defended Judge Waterstone in the civil case learned “confidential information that he may not use against defendant and whether knowledge of that information may be imputed to other assistant attorneys general.”

The court determined that Cabadas, the lawyer from the PEET division who represented Judge Waterstone in the civil case, did in fact receive confidential information from her in the course of that representation. Cabadas, in the course of representing Judge Waterstone, filed papers in which Judge Waterstone directly denied the perjury allegations that are at the heart of the criminal prosecution. The court next analyzed whether this information should be imputed to the AAGs in the Criminal Division. While acknowledging that the definition of a law firm in Michigan’s Rules of Professional Conduct does not always apply to the Attorney General’s office, the court held that it did so in this case. Applying that standard, the court found that

[T]he prosecution of a judge is an unusual event and knowledge of the potential federal case can be inferred. The Attorney General never explains why the office did not perform an automatic conflict check. Given the PEET Division’s routine role in defending judges in federal 1983 civil claims, it is unreasonable for the Attorney General to have failed to carry out a conflict check. . . We decline to rule that the Attorney General should be exempt from imputed knowledge, where a simple conflict check would have revealed the federal suit. We therefore conclude that knowledge may be inferred from these circumstances, such that the Attorney General should have obtained the consent of his former client, defendant.”

Turning to the question of prejudice to the defendant, the court held that the issue here was not whether Cabadas shared confidential information with the Criminal Division AAGs, but rather, whether the defendant believed that she was still being represented by the Attorney General’s office during her interactions with the Criminal Division. “The critical issue is not whether Cabadas shared defendant’s confidential information with Dakmak and Rollstin, but whether defendant herself shared such information based on her reasonable belief that she was a former client of the Attorney General’s “firm” whose investigator questioned her under the guise of investigating others.”

The court held that, although the Michigan Rules of Professional Conduct do not automatically apply to the Attorney General, “the unusual circumstances of this case cannot permit the accommodation sought by the Attorney General. To remedy the conflict of interest, we direct that the Attorney General withdraw from the prosecution of this case.”

Pennsylvania

Attorney General Parens Authority in Charities Case

Commonwealth by Corbett v. Citizens Alliance for Better Neighborhoods, Inc., 983 A.2d 1274 (Pa. Comm. Ct. 2009)

The Attorney General of Pennsylvania sued a former state senator who had founded a charity, Citizens Alliance for Better Neighborhoods, Inc. The Attorney General alleged that the defendant, although not an officer or director of the charity, “controlled and dominated Citizens, its board of directors and its officers to the extent that it operated as his alter ego.” The Attorney General alleged that the defendant used Citizens to “unlawfully advance his personal convenience, enrichment and political advantage through various expenditures that benefited [defendant], including providing vehicles and office space and funding political activities.” Defendant was convicted on federal fraud charges for receiving non-profit funds. Defendant challenged the Attorney General’s complaint on the grounds that the Attorney General did not have standing to bring a parens patriae action in a charities case.

The court held that it is “well-settled” law that the Pennsylvania Attorney General is responsible for the public supervision of charities through his parens patriae powers. “The Commonwealth has parens patriae standing whenever it asserts quasi-sovereign interests, . . . Here, the Commonwealth’s interest in the well-being of the public that Citizens was created to serve is a clear example of such a quasi-sovereign interest. . . .It is the duty of the Attorney General to ensure that the purpose of the charity remains charitable. Consequently, the Attorney General always has standing in any case involving a charity.”.

Texas

Attorney General Class Action Prerequisites Satisfied

Lubin v. Farmers Group, No. 03-03-00374-CV (Tx. Ct. App. Nov. 6, 2009)

The Attorney General of Texas entered into a class action settlement with a group of insurance companies over inadequate disclosures and discrimination in homeowners’ rating practices that allegedly violated the state’s Insurance Code. Several intervenors objected to the settlement and the court of appeals reversed, holding the Attorney General could not bring a class action under the Insurance Code without naming individual class members as representatives. Although the Texas Supreme Court declined to hold that the Attorney General could bring the class action without fulfilling any of the prerequisites, it held that “the typicality, adequacy, and other prerequisites for all class actions must be applied to the damage claims asserted by an attorney general, rather than to that official personally.” The Texas Supreme Court also held that class representatives were not necessary to measure the fairness of the settlement and to avoid possible conflicts of interest in class actions brought by the Attorney General. The Supreme Court remanded to the Court of Appeals for a determination as to whether the prerequisites for a class action had been satisfied.

In the Court of Appeals, the intervenors made a number of arguments about the Attorney General’s actions as class representative. First, they argued that the Attorney General did not satisfy the adequacy and typicality criteria, because there was a conflict between the Attorney General and the class due to the Attorney General’s representation of the insurance commissioner and the Insurance Department. They argued that the Department has an interest in having the defendant insurer continue to provide insurance in Texas, while the policy holders simply want to recover more money for their injuries. The court characterized this concern as hypothetical, and noted that if this were to disqualify the Attorney General from bringing a class action under the Insurance Code, he would be disqualified from ever bringing this type of case. In this specific case, the Department brought an administrative action against the defendant insurer and in the course of that action, indicated that the Department was indifferent as to whether the insurer left the Texas market or not.

The appellants next argued that the Attorney General did not vigorously prosecute the claims, as required for a class representative. The court of appeals dismissed most of the “vigorous prosecution” arguments on the grounds that arguments about claims released by the Attorney General and the value of certain claims went to the fairness of the settlement, rather than the vigor with which the Attorney General pursued it.

The court noted that in assessing adequacy, the court should take into account the zeal and competence of class counsel. The court noted “the unique position that the attorney general serves in the State” and found that “The attorney general’s role as representative for the State gives him unparalleled experience regarding insurance law in Texas.” The court also found that the Attorney General’s investigation prior to filing suit had made him “uniquely familiar with the subject matter forming the foundation of this suit.” The court dismissed the intervenors’ claims and held that the certification of the class action by the trial court was proper.

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