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Recent Decisions Affecting the Powers and Duties of State Attorneys General

Emily Myers, Antitrust and Special Projects Counsel

Wisconsin–Attorney General Not Collaterally Estopped by Previous Private Suit

Flying J, Inc. v. Van Hollen, No. 08-C-110 (E.D. Wis. Feb. 11, 2009)

A private party sought to enforce Wisconsin’s Unfair Sales Act, which prescribes a minimum mark-up for gasoline sales in Wisconsin. The defendant, Flying J, argued that the Unfair Sales Act was unconstitutional under the Supremacy Clause because it violated the federal antitrust laws. Flying J provided notice to the Attorney General of its challenge to the constitutionality of a Wisconsin statute. The Attorney General declined to intervene in the case. The court granted summary judgment for the defendant, because the Unfair Sales Act was held to be unconstitutional. After this decision, the state continued to require Flying J to adhere to the Act, and threatened enforcement action in connection with its gasoline prices. Flying J filed an action seeking to enjoin the state from enforcing the Unfair Sales Act.

Flying J argued that the state should be collaterally estopped from defending the statute because it did not intervene in the earlier private case. The court disagreed,

A private party necessarily has different motives for the pursuit and allocation of resources to litigation than does a governmental entity. That many of the same arguments are being parroted by the Attorney General is not surprising. The Attorney General still brings his own perspective and expertise into the equation. He should not be precluded from having his day in court only because the same issue arose in the context of a private dispute.

The court noted that the previous plaintiff had brought the action under the Unfair Sales Act to recover damages for injuries it sustained by the lower prices charged by Flying J. “The distinction between the State seeking enforcement and a private party . . . attempting to recover damages is obvious. The State’s interest in enforcing the Act relates to the regulation of unfair competition in the sale of motor vehicle fuel.”

California–Governor May Control Personnel of Separately Elected Constitutional Officers

Schwarzenegger v. Chiang, No. 2009-80000158, (Cal. Super.)

Schwarzenegger v. Chiang, No. C061648 (Cal. App. 3d Dist.)

A state budget crisis led the governor to issue an Executive Order directing the state Department of Personnel Administration to implement “a furlough of represented state employees and supervisors for two days per month” from February 2009 to June 2010. The Executive Order also requested “other entities of state government not under my direct executive authority” to implement similar cost-saving measures. State employee unions challenged the order and lost. In that case, the court did not address the issue of whether the governor’s order applied to the state constitutional officers, including the Attorney General. The governor sued the constitutional officers, seeking to apply the same furlough program to their offices.

The Attorney General filed a brief on behalf of the state constitutional officers arguing that the governor’s Executive Order requiring furloughs of their employees would “violate the system of divided executive power embodied in the State Constitution and would interfere with the independent powers and duties that have been assigned to their offices.”

The court held that the constitutional officers were “civil executive officers” under California statute, and their employees were therefore subject to the jurisdiction of the Personnel Board with respect to the non-merit aspects of their employment. Furloughs are considered a non-merit aspect of employment. The court disagreed with the contention of the constitutional officers that this would allow impermissible interference by the governor in the powers and duties of the constitutional officers, because the governor’s ability to order furloughs is limited by California statute to circumstances in which the governor has a “legitimate reason to reduce the hours of state employees in this manner, one that is related to the legitimate needs of state agencies. . . in this case at least, the governor’s action was not arbitrary or capricious, and does not impermissibly interfere with the powers and duties of other elected civil executive officers.”

The constitutional officers appealed the ruling to the California Court of Appeal, requesting a stay of the governor’s Executive Order while the case is pending. The governor did not oppose the motion for a stay, so the governor’s Executive Order has not yet been applied to the employees of the state constitutional officers.

California–Attorney General Immune from §1983 Claims But Not from State Law Claims

Cousins v. Lockyer, No. 07-17216 (9th Cir., June 15, 2009)

Cousins, a sex offender, failed to register as required by state law was convicted and sentenced to 25 years in prison under the state’s three-strikes law. After his conviction, the California Court of Appeal issued a decision holding the statute under which he was convicted unconstitutionally vague. The state did not appeal the decision. Cousins filed a writ of habeas corpus, arguing that he should be released because the statute had been declared unconstitutional. The Attorney General’s office filed its answer a year later. The California Supreme Court issued the writ and Cousins was released approximately 19 months after the statute was held unconstitutional. He filed suit alleging that his prolonged incarceration violated 42 U.S.C. §1983 and several state statutes. He alleged that the Attorney General “had a duty to inform the trial court. . . and various officials in the California Department of Corrections and Rehabilitation” of the invalidity of Cousins’ conviction, and the breach of this duty violated his right to due process and his right to be free from cruel and unusual punishment. The trial court dismissed the claims against the Attorney General based on his absolute prosecutorial immunity, and Cousins appealed.

The court described the Attorney General’s absolute federal immunity when acting “within his role as an “advocate for the State” and his actions are “intimately associated with the judicial phase of the criminal process”, but noted that the Attorney General is only entitled to qualified immunity when he is not acting as an officer of the court, but is instead engaging in investigatory or administrative tasks. The court held that the Attorney General could not have hastened Cousins’ release by simply notifying the court, in a ministerial way, that the statute had been invalidated, but rather, that the Attorney General would have had to petition the court for Cousins’ release, an act the court described as “an action wholly dependant on his role as advocate for the State.” The court also rejected Cousins’ argument that the Attorney General should have set up a system to track decisions that affect the incarceration of inmates in the state. The court held that supervising prosecutors “retain absolute immunity regarding decisions to create information management systems where, as here, ‘determining the criteria for inclusion or exclusion requires knowledge of the law,’ and where, as here, the information is relevant only insofar as it relates to the prosecution of a particular case--in this instance, the AG’s distinctly prosecutorial function of going to the sentencing court to undo Cousins’ conviction.” The court did not grant the Attorney General absolute immunity with respect to Cousins’ state claims, citing California Supreme Court precedent that prosecutors are not absolutely immune from false imprisonment claims. Any other claims based on the same facts are likewise not subject to a defense of prosecutorial immunity.

Nevada–Attorney General Cannot Prosecute Lieutenant Governor Because of Conflict Issues

State v. Krolicki, No. C250045 (Dist. Ct., Clark Cty. Nev. May 19, 2009)

The Lieutenant Governor of Nevada was indicted on two counts of misappropriation and falsification of accounts in connection with the state’s College Savings Program (CSP) arising from his actions when he was state treasurer. He moved to disqualify the Attorney General’s office from representing the state because several assistant attorneys general advised the Treasurer’s office about the program and about contracts that are the basis for the indictment. The attorneys prosecuting the case against the defendant had never advised the Treasurer’s office, and the Attorney General had erected a “Chinese Wall” between the prosecuting attorneys and those involved in an earlier civil investigation of the office.

Defendants stated that their defense would be based on the advice they received from the attorneys from the Attorney General’s office in connection with the program, conceding that their disqualification motion was not based on attorney-client privilege concerns. Instead, they argued that this is an “extreme case” where disqualification is necessary because of the “appearance of unfairness and impropriety in the circumstances here presented. Although the court noted that the Attorney General should not be automatically precluded from prosecuting state officials in this type of case, it held that the circumstances here warranted disqualification. Among other things, the court noted that prosecutors from the Attorney General’s office would be cross-examining their current and former colleagues, that the office itself had recognized a potential conflict by erecting a Chinese Wall between the prosecuting attorneys and those working on the civil investigation. Although it granted the motion, the court specifically found that there had been no impropriety or partiality in the investigation that led to the indictments.

Pennsylvania–Attorney General Refusal to Pursue Private Criminal Complaint Is Within AG Authority

In re Private Criminal Complaints of Rafferty, 2009 WL 782992 (Pa.Super.)

Appellant, an inmate whose parole was revoked at a hearing, filed three private criminal complaints against witnesses at the hearing and the deputy attorney general who acted as prosecutor, alleging perjury, obstruction of justice and false imprisonment. The criminal complaints were referred by the local district attorney to the Attorney General’s office. The Attorney General declined to prosecute the complaints, citing lack of prosecutorial merit. The trial court affirmed that finding, and petition appealed. Petitioner argued that the Attorney General’s review of the complaint was not a “policy determination” as the trial court held, but was rather was based on a legal assessment of the evidence, and was therefore subject to de novo review, rather than review for abuse of discretion. The court cited a line of cases in Pennsylvania under which “a determination that the case lacks prosecutorial merit is a “policy determination” subject to the aforementioned standard of review.”

Washington–Attorney General Does Not Have Duty to Defend Judge In Ethics Litigation

Sanders v. State, 2009 WL 1332542 (Wash.)

The Attorney General filed a complaint with the Commission on Judicial Conduct after a Washington Supreme Court justice visited a state correctional facility and allegedly communicated with residents about cases pending before the court. The Commission on Judicial Conduct investigated the complaint, and the justice sought representation by the Attorney General. The Attorney General declined to represent him, and he retained private counsel. The Commission then determinedthat there had been a violation, and the justice was admonished. The justice sought a declaratory judgment that he was entitled to representation by the state. The trial court held for the state, and the court of appeals affirmed. The justice appealed to the state Supreme Court.

The Washington constitution provides, “The attorney general shall ... [d]efend all actions and proceedings against any state officer or employee acting in his official capacity, in any of the courts of this state or the United States.” The relevant statute provides, “The attorney general shall also represent the state and all officials ... of the state in the courts, and before all administrative tribunals or bodies of any nature, in all legal or quasi legal matters, hearings, or proceedings.” Although the statute is not expressly limited to official actions of state officials, the court concluded that the limitation should apply, otherwise the Attorney General would have to represent state officials even in private matters. The justice argued that the ethics complaint arose out of his official acts, but the court disagreed,

His acts involved contact with offenders who had cases pending in his court. Representation of a judge being disciplined for ethical violations is beyond the purpose of RCW 43.10.040. Its purpose is to provide defense to an official when engaged in official acts. Justice Sanders knew or should have known that his conduct was unethical; therefore, he is not entitled to representation.

The dissent argued that because the Attorney General was the complainant in this case, “Holding that the attorney general has sole discretion under RCW 43.10.040 allows the attorney general both to initiate a complaint and to control an accused judge's entitlement to a defense.” The dissent also argued that because the statute speaks in mandatory terms (“shall represent”), the Attorney General has no discretion to refuse to represent a judge in connection with an ethics complaint.

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