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Decisions Affecting the Powers and Duties of Attorneys General

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 and territorial attorneys general. 

 

            District of Columbia-Attorney General May Obtain Disgorgement in Nuisance Case.   District of Columbia police conducted an undercover operation on premises owned by George Thanos that resulted in several prostitution arrests and recovery of $14,000 in cash.  The District of Columbia attorney general sought an injunction against Thanos and VIP Therapy, the business operating on the property. The District was represented by a private attorney appearing pro bono as a special assistant attorney general. After trial, the court concluded that the property constituted a prostitution-related nuisance. The District sought disgorgement from both the landlord and the business as well as attorney's fees.  The court awarded attorney's fees, but held that disgorgement was not supported by the statute. Both the landlord and the District appealed. 

            After finding that the issuance of the injunction was proper, the court of appeals turned to Thanos' claim that the District should not have been awarded attorney's fees because it was represented in this case by a private attorney acting on a pro bono basis as a "special assistant attorney general."  Because the fees would not be awarded to the attorney, but would instead be received by the District, Thanos argued that the award was essentially punitive damages.  In an earlier case involving pro bono representation of clients by a nonprofit entity, the court had held that "If no fees are awarded, the burden of the costs is placed on the organization providing the services and it correspondingly may decline to bring such suits and decide to concentrate its limited resources elsewhere."  The court held that the same rationale applied in this case,

That the District is a government entity and not an impoverished citizen is legally irrelevant to the question of attorney's fees. Had the District been represented by a salaried Assistant Attorney General, it would have been entitled to attorney's fees at a reasonable market rate based on the lodestar method, not based on the attorney's actual salary. . . . Whether the prevailing plaintiff is the U.S. Attorney's Office, the District of Columbia Office of the Attorney General, or a community-based group, that plaintiff is entitled to reasonable attorney's fees.

The court also affirmed the fees awarded by the district court, even though some of the fees were associated with the District's unsuccessful claim for disgorgement.  It is difficult to "distinguish hours spent on individual claims that are ultimately unsuccessful from time spent on the overall successful litigation." 

            The District appealed the trial court's ruling that the statute did not provide for disgorgement.  The District's Drug or Prostitution-Related Nuisance Abatement Act provides that an order enjoining the prostitution nuisance "may also include relief in the form of attorney's fees and costs and "any other remedy which the court, in its discretion, deems appropriate."  The Act also states that the action is civil in nature and none of its provisions should be interpreted as a punishment. The trial court held that it did not have authority to order disgorgement. The court of appeals disagreed. The court first noted that disgorgement is an equitable, rather than legal, remedy because it does not compensate victims, but prevents unjust enrichment.  "The court does have the authority to order income disgorgement--not as a punishment or as victim compensation, but to deprive Mr. Thanos and VIP of their ill-gotten revenues on the theory that [they] should not be permitted to retain the spoils from a prostitution-related nuisance."  The court remanded the case to the trial court to determine whether disgorgement was an appropriate, non-punitive remedy, and what level of disgorgement would be appropriate.  Thanos v. District of Columbia, 2014 D.C.App. LEXIS 527 (Dec. 31, 2014).

            Iowa-No Conflict of Interest in AAG Representation of State University--The University of Iowa filed disciplinary charges against Dr. Juweid, a tenured faculty member at its school of medicine, alleging violation of the anti-harassment, disruptive behavior, and anti-retaliation policies of the university. Juweid filed a lawsuit against 25 defendants, including the University's president, alleging he was entitled to whistleblower protections. While that suit was pending, a three-person faculty panel held a hearing on the disciplinary charges pursuant to procedures in the university's operations manual. The university was represented by an assistant attorney general (AAG). The panel concluded that Dr. Juweid should be dismissed from his position.  After Juweid appealed to the University's president, the Board of Regents and the district court, all of whom affirmed the decision of the disciplinary panel, he appealed to the Iowa court of appeals.

            Juweid alleged that the university had violated his procedural and substantive due process rights because the same AAG had represented the university in the disciplinary proceedings and the university's president in Juweid's civil suit. Juweid characterized this as a conflict of interest with the AAG and the university president.  The court of appeals noted that normally the party must "bear the difficult burden of persuasion to overcome the presumption of honesty and integrity in those serving as adjudicators."  However, if "the same person with an agency performs both prosecutorial/advocacy and adjudicative roles, there may arise a "will to win" which creates a risk that due process has been violated so great that the ordinary requirement of actual bias or prejudice in separation of functions challenges does not apply." After finding that there was no conflict of interest with respect to the university president, the court of appeals turned to the claims against the AAG. 

            After reviewing past decisions, the court held there was nothing in the record indicating that the AAG acted as an impermissible advisor to the university president in her decision.  The court noted that Iowa Rules of Professional Conduct § 32:1.7(a)(1) addresses ethical conflicts of interest that arise when the concurrent representation of one client is directly adverse to the representation of another.  The court held,

The Attorney General has the duty to prosecute or defend causes of action for which the state or its employees is a party or for which the state's interest requires. [Iowa Code] § 13.2 (2011). . . . Dr. Juweid has not demonstrated how Assistant Attorney General Carroll's defense of President Mason in the civil matter adversely affected his representation of the University in the disciplinary matter. While it is true that the final institutional decision rested with President Mason, Dr. Juweid has failed to present evidence tending to indicate that Assistant Attorney General Carroll's representation improperly influenced her decision or that of the Faculty Judicial Panel.

Juweid v. Iowa Board of Regents, 2014 Iowa App. LEXIS 1143 (Iowa Ct. App. Nov. 26, 2014)

            Illinois-Enforcement of Subpoena-The Illinois attorney general issued an investigative subpoena to the defendant seeking information about DVDs and seminars produced by the defendant that might violate the state's Consumer Fraud Act and other statutes. The defendant never responded to the subpoena. The attorney general then filed a complaint against the defendant to enforce compliance with the subpoena. The trial court entered an order enjoining the defendant from engaging in trade or commerce within Illinois with respect to the DVDs or seminars until he responded to the subpoena. The defendant appealed, arguing, among other grounds, that the attorney general's investigation must be supported by probable cause and that the subpoena is barred by the Fifth Amendment because he is the subject of a federal criminal indictment.

            The court of appeals first stated that it is "well settled that neither the Illinois nor the federal constitution requires a showing of probable cause to initiate an administrative investigation."  Instead, to evaluate whether an investigative subpoena is enforceable, courts consider the constitutionality of the authorizing statute, whether the proceedings are included within the statutory authority, the reasonableness of the demand and the relevance of the information sought.  In this case, the Consumer Fraud Act is constitutional, and it authorizes the attorney general to conduct the investigation. The defendant did not contest the reasonableness or relevance of the information sought. The subpoena therefore did not violate the Fourth Amendment. Turning to the defendant's Fifth Amendment argument, the court first noted that when someone receives an investigative subpoena, "the privilege against self-incrimination is not properly claimed by merely failing to appear."  Even if the defendant had properly appeared and invoked his Fifth Amendment protection, "there is no evidence that the attorney general is aiding or participating in any criminal prosecution of the defendant," so the Fifth Amendment does not apply.  Finally, with respect to the defendant's argument that his speech was protected by the First Amendment, it is the defendant's refusal to respond to the subpoena that is at issue here, not the underlying speech.  "[T]he State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity." People of the State of Illinois v. DeCosola, 2015 Il. App. (2d) 140523 (Ill. Ct. App. Jan. 9, 2015).

            Maine-Dispute Between Governor and Attorney General About Administrative Rulemaking Should Be Resolved in State Court-The Maine Department of Health and Human Services (DHHS) issued a memo to all municipalities notifying them  the DHHS "will no longer provide reimbursement to a municipality for General Assistance provided to aliens who are not lawfully present in the United States."  DHHS cited the 1996 Personal Responsibility and Work Opportunity Act, which states that an alien not lawfully present in the United States is not eligible for state or local public benefits unless the state passes a new law after August 22, 1996 affirmatively making them eligible. The attorney general issued a statement in which she described constitutional and legal concerns with the memo and expressed the opinion that the executive branch lacks authority to promulgate a change in General Assistance eligibility, whether by rule or by edict or by form. She also noted that the municipalities have a right to appeal DHHS's decision, as does any applicant who is denied General Assistance benefits.

            The association of Municipalities sued DHHS and its commissioner, seeking a declaratory judgment that the memo was null and void because it failed to comply with formal rulemaking procedures; that all municipalities are not required to comply with the terms of the memo; that the memo and any related revisions to General Assistance forms require rulemaking procedures; and to enjoin DHHS from enforcing the memo until rulemaking is complete.  Defendants removed the case to federal court, arguing that the suit raised federal questions. The plaintiffs argued that there was no federal question jurisdiction because the complaint contains only state causes of action and that removal analysis should use the "well-pleaded complaint" rule under which there is no federal question jurisdiction if no federal claim appears "within the four corners of the complaint."

            In the course of deciding whether federal question jurisdiction applied to the removal of this case, the court addressed the plaintiffs' argument that DHHS did not comply with the Maine Administrative Procedures Act (MAPA), which requires that the proposed rule change be presented to the attorney general for approval. In this case, the attorney general did not approve the rule. The court therefore addressed the relationship of the governor and the attorney general under Maine law. The court noted,

[If] the Governor and an executive branch agency must in effect obtain the approval of the Attorney General, the ability of the executive branch of state government to exercise "supreme executive power" may be substantially constrained because the Governor would be required to obtain prior approval of the Attorney General before undertaking similar executive actions. If the Governor and the Attorney General are at odds as they are here, the authority of the executive branch of state government could be effectively stalemated, the legal opinion of the Attorney General trumping the executive authority of the Governor.

The court concluded that whether DHHS's memo was a rule subject to the MAPA is "a matter purely of state law with significant implications as to how state government must function."  Noting that the governor and the attorney general are of different political parties, the court stated "this dispute has an undercurrent of state politics, which is another reason the Court is striking the balance in favor of remanding it to a state court judge."  The court held,

[T]he Court concludes that a state court, not a federal court, should resolve legal disputes that run to the heart of how Maine state government is to function. Even though immigration policy is largely a federal concern, in the context of this internecine dispute between elected Maine officials, the federal court would risk meddling in a dispute that resonates with state governmental and policy concerns.

 

Maine Municipal Ass'n v. Mayhew, No. 1:14-cv-00311 (D. Me. Dec. 4, 2014)

            Michigan-First Amendment Rights of Attorney General Office Employees-In 2010, Andrew Shirvell, an assistant attorney general (AAG) in the Michigan Attorney General's office, published numerous blog posts denouncing Chris Armstrong, the new president of the University of Michigan's student government, who was gay. In addition to the blog, Shirvell appeared outside Armstrong's residence and at events where Armstrong was present and held protest signs. Shirvell also appeared on national television to discuss his actions. Shirvell was fired for "conduct unbecoming a state employee," including conduct that caused disruption among members of the Department [of Justice] workforce, that has damaged the public's perception of the Department's ability to conduct its operations, and that "compromised [his] ability to perform [his] responsibilities as an Assistant Attorney General."  Shirvell filed a grievance, which was denied.  He also filed a claim for unemployment benefits, which was denied, but the circuit court reversed the denial because he "engaged in protected speech and therefore could not be denied benefits on the basis that his speech activities amounted to misconduct." Both cases were appealed and heard together.

            The court of appeals stated that the First Amendment's protection of speech was at the heart of both cases. Citing the U.S. Supreme Court's decision in Pickering v. Bd. of Ed,, the court of appeals described the framework for balancing the free speech rights of the employee with the state's interest, as an employer, in promoting the efficiency of its public services:  "an employee is entitled to protection under the First Amendment if he or she spoke as a private citizen on a matter of public concern and where the state cannot show that its interest in the efficient provision of public services outweighs the employee's interest in commenting on the matter of public concern."[1]  Although it did not believe that Shirvell's speech was about a matter of public concern, the court assumed that Shirvell was speaking as a private citizen on a matter of public concern for purposes of its decision. 

            In this situation, the courts are to consider a number of factors when balancing the employer's and employee's interests, among them whether the speech "(1) impaired discipline by superiors, (2) detrimentally impacted close working relationships, (3) undermined a legitimate goal or mission of the employer, (4) impeded the performance of the speaker's duties, and (5) impaired harmony among co-workers."  The court noted the evidence that the Attorney General's Office (AGO) had received more than 20,000 complaints in response to his interviews, and the state's Civil Rights Commission issued a resolution condemning the behavior and questioning the AGO's ability to fulfill its mission. The court also noted that his speech had the capacity to cause harm to the AGO by promoting "distrust amongst the Department's present or future gay, bi-sexual and transgender employees."  The AGO had promoted a cyber-bullying initiative that was called into question by Shirvell's online comments about Armstrong.  Shirvell, as an AAG, was required to appear in court as a representative of all of the state's citizens, irrespective of sexual orientation. The court found, "[I]t would be difficult for Shirvell to credibly appear in court as a representative of the entire citizenry including segments of the population including gays or victims of harassment and stalking."  The court concluded, "The First Amendment did not require the Department to preserve the employment of an individual whose continued harassment and stalking of a minority and dissemination of bigoted, homophobic statements risked harming the Department's integrity and its mission."

            In discussing Shirvell's termination, the court discussed the Attorney General's Office and its role in state government:

Of critical importance in this case is that Shirvell was in a position of public trust. He was appointed by the Attorney General, an elected official in a position of public trust, to assist in carrying out the powers and duties of the Attorney General.[citations omitted]  The Attorney General is tasked with representing the State and its interests in legal proceedings and is the chief law enforcement office of the State. [citations omitted] As an elected official, the attorney general serves all of the citizens of Michigan, irrespective of race, creed, religion, gender or sexual orientation. Thus, the Department had a real and substantial interest in maintaining neutrality and conducting its operations in a non-biased manner; the public actions of its employees, therefore, were critical in protecting this interest.

            The court affirmed Shirvell's dismissal and denied his application for unemployment benefits.  Shirvell v. Dept. of Attorney General, 2016 Mich. App. LEXIS 8 (Mich. Ct. App. Jan. 8, 2015).

 

Mississippi-Attorney General May Not Be Appointed Special Prosecutor Over Objections of District Attorney-Defendant Harvey Williams was convicted of murder. On appeal, the court remanded the case because evidence had been excluded that could have indicated Williams acted in self-defense.  On remand, the district attorney sought an order of nolle prosequi based on new evidence that the defendant may have acted in self-defense.  The court granted the order, then reversed and appointed the attorney general as special prosecutor for the case. After further proceedings, the district court concluded that the original case was at an end, but that the attorney general could be appointed special prosecutor and pursue the prosecution. The defendant appealed, arguing that the Constitution and/or common law of the State of Mississippi does not authorize the intervention of the Office of the Attorney General in a criminal prosecution in which the local district attorney opposes such interference.

The court determined that neither the state Constitution, which establishes the office of attorney general, nor the common law, as recognized by Mississippi case law, "authorizes the attorney general to usurp or encroach upon the constitutional or the statutory power of the local district attorney in a criminal case " where the attorney general's assistance is opposed by the district attorney.  The court noted that the powers of the district attorney are established by statute and that district attorneys cannot represent the state in litigation outside their district. Past cases have established that the attorney general can neither increase nor diminish the statutory power of the district attorney, and "Intervention of the attorney general into the independent discretion of a local district attorney regarding whether or not to prosecute a criminal case constitutes an impermissible diminution of the statutory power of the district attorney."  The district attorney has control of the case and has declined to prosecute it, so the court cannot appoint the attorney general instead.

            In dissent, Justice Coleman stated that the attorney general's authority to intervene in this case comes from the common law, which includes the attorney general's right to "institute, conduct and maintain all suits necessary for the enforcement of the law of the state, preservation of order and the protection of public rights." Justice Coleman would therefore have allowed the attorney general to prosecute the case.  Williams v. State, 2014 Miss. LEXIS a599 (Miss. Dec. 11, 2014).

            Nebraska-Assistant Attorney General May File Information in Criminal Case-A defendant convicted at trial of witness tampering appealed on the grounds, among other things, that the court did not have subject matter jurisdiction to proceed because the information was filed by an assistant attorney general rather than the Nebraska attorney general himself.  The attorney general filed an affidavit saying that the assistant attorney general had the attorney general's express and implied authority to sign criminal pleadings, including information, on behalf of the state. The court held that, pursuant to Nebraska statutes, the attorney general is authorized to appear for the state and prosecute and defend, in any court, any cause or matter, civil or criminal, in which the state may be a party or interested. The statutes also state the attorney general "shall appoint a deputy attorney general" who "may do and perform, in the absence of the Attorney General, all the acts and duties that may be authorized and required to be performed by the Attorney General." The court concluded, "Thus, the Attorney General had the authority under the Nebraska statutes to delegate tasks to an assistant attorney general, and the record shows the assistant attorney general had specific authority from the Attorney General to file the information charging [the defendant] for the crimes of which he was convicted." Nebraska v. Glazebrook, 22 Neb. App. 621 (Neb. App. 2015).

            Texas-Attorney's Fees Cannot Be Awarded Against Attorney General's Office-Blanca DeLeon purchased several pieces of property with money from a personal injury settlement.  Her husband, Jose, had child support obligations for children from a previous marriage. The attorney general put liens on the properties for Jose's child support obligations.  Blanca sued for declaratory judgment that the properties were her separate properties. The court granted Blanca relief from the liens and awarded attorney's fees against the attorney general.  The attorney general argued that attorney's fees were not available under the applicable statue and the court orally stated that the award was a sanction on the attorney general. The attorney general appealed on the grounds that attorney's fees could not be awarded against the attorney general under the Texas Family Code, the state Uniform Declaratory Judgments Act or as a sanction.  The appellate court held that the Texas Family Code expressly prohibits an award of attorney's fees against the attorney general in this type of case. Texas case law also prevents plaintiffs from using the Uniform Declaratory Judgment Act to get around the bar on attorney's fees assessed against the attorney general. Turning to the imposition of attorney's fees as a sanction, the appellate court held that the trial court had failed to give notice to the attorney general that sanctions might be imposed, and failed to issue any findings to support an award of sanctions.  Office of the Attorney General v. De Leon, 2014 Tex. App. LEXIS 13861 (Ct. App. Tex. 4th Dist. Dec. 31, 2014).

 



[1] 391 U.S. 563(1968).

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