National Association of Attorneys General
Recent Powers and Duties Decisions
Challenging Executive Action
The Kentucky Supreme Court issued an important decision on the common law powers of the attorney general, upholding the attorney general’s standing to challenge actions by the executive branch.
The Kentucky governor ordered a budget reduction for the executive branch, which included the state’s public universities. The attorney general filed a declaratory judgment action against the governor, the state budget director, and the state treasurer, alleging that the governor had no authority to reduce the amount of money made available to a state university under a legislative appropriation. The governor argued that the attorney general did not have standing to bring the suit and that his own actions were legal. The lower court held that the attorney general had standing to challenge the governor’s actions, but held that the actions were within the governor’s power; the attorney general appealed to the Kentucky Supreme Court.
The court cited an earlier decision, Commonwealth ex rel. Conway v. Thompson,1 which held “the Attorney General of the Commonwealth of Kentucky has standing to seek injunctive relief on behalf of the citizens of the Commonwealth” because “the Attorney General ha[d] a sufficient personal right in these types of cases by virtue of the office and the duties commensurate with that high office.”2 The court analyzed the question of whether the attorney general’s duty confers standing in this case. Citing the statute (KRS 15.020) which prescribes the attorney general’s duties, the court held:
Whether the Attorney General has the power to bring a given action on behalf of the people of the Commonwealth (at least where there is no statute governing the subject) turns on whether that action falls under the “common law duties and authority pertaining to the office of the Attorney General under the common law,” and whether the action is one “in which the Commonwealth has an interest.”
Although defining the attorney general’s common law powers is difficult, the attorney general is clearly empowered to bring any action thought “necessary to protect the public interest.” In fact, the attorney general “appears to have the duty to” bring suit when he “believes the public’s legal or constitutional interests are under threat. . . .” In earlier decisions, the court had held that the attorney general could challenge the constitutionality of a statute and found no reason to differentiate between an unconstitutional or illegal statute and an unconstitutional or illegal executive action. In fact, “It is certainly in ‘the interest of all the people’ that there be no unconstitutional or illegal governmental conduct.”
The governor argued that the attorney general’s standing to bring suit in the public interest should be limited to situations where there are no identifiable private parties with individual injuries, such as the universities in this case. The court distinguished one of its earlier decisions, in which it approved a statute that allowed state agencies to hire their own counsel. The court in that case explicitly declined to decide whether the statute affected the supremacy of the attorney general as the chief law officer of the state. The court addressed that question, holding that
[D]elegating day-to-day operational powers—in this case, to the Universities’ own counsel—does not preclude a need for the attorney general to protect “the interest of all the people” when unconstitutional or unlawful conduct is claimed either by or toward those universities. . . . There is no valid justification for cutting off the “hereditary” prerogative of the Attorney General to challenge the legality and constitutionality of a state action merely because the state actor has (or could) employ other legal counsel.
The court also noted the unique fitness of the attorney general to challenge illegal or unconstitutional actions, rather than leaving it to other agencies or actors: “The ongoing functions of such entities and the costs of such litigation, in money and political good will, could make a legal challenge prohibitive despite whatever disagreement they may have with a Governor’s or legislature’s action. Because the Attorney General is the chief law officer of the Commonwealth, he is uniquely suited to challenge the legality and constitutionality of an executive or legislative action as a check on an allegedly unauthorized exercise of power.” In conclusion, the court held, “the Attorney General, as chief law officer of Kentucky, has broad authority to sue for declaratory and injunctive relief against state actors, including the Governor, whose actions the Attorney General believes lack legal authority or are unconstitutional.” Commonwealth ex rel. Beshear v. Commonwealth ex rel. Bevin, 2016 Ky. LEXIS 435 (Ky., Sept. 22, 2016).
Parens Patriae Authority
The Ninth Circuit recently addressed the question of the parens patriae standing of state attorneys general in a case brought by six states to block enforcement of certain California laws. After California voters adopted an initiative that enacted new standards for housing egg-laying hens, the California legislature enacted a statute saying that all eggs sold in California must comply with the standards adopted in the initiative. The initiative, law, and associated regulations (egg laws) were to go into effect on Jan. 1, 2015. In early 2014, six states filed a complaint asking the court to declare the egg laws invalid because they violated the Commerce Clause or were preempted by federal statute. The state of California filed a motion to dismiss, which was granted by the trial court on the grounds that the plaintiff states lacked standing as parens patriae. The plaintiff states appealed.
In addition to the three factors required for Article III standing (actual injury, traceable to the challenged action, that is redressable), parens patriae cases also require that 1) the state articulate an interest apart from the interests of particular private parties and 2) the state express a “quasi-sovereign” interest. The Ninth Circuit held that the plaintiff states did not meet the first part of the test.
Listing a number of claims, the Ninth Circuit panel stated, “The complaint contains no specific allegations about the statewide magnitude of these difficulties or the extent to which they affect more than just an ‘identifiable group of individual’ egg famers.” The court found that complete relief from the claimed injuries would be available to the egg farmers in the plaintiff states through a complaint they filed themselves. The court also found that the potential damage to the egg farmers was speculative, since the suit was filed before the egg laws went into effect. In addition, it is “substantially more difficult for a plaintiff to establish standing when the plaintiff is not himself the object of the government action or inaction he challenges.” In this case, “the alleged price effects for consumers are remote, speculative, and contingent upon the decisions of many independent actors in the causal chain in response to California laws that have no direct effect on either price or supply.”
Finally, the Ninth Circuit noted that the California egg laws do not discriminate among eggs based on the state of origin, but rather require that all eggs be from hens housed in a way that complies with California law. Nor did the plaintiff states allege “trade barriers erected against their broader economies.” The court affirmed the district court’s judgment and remanded the case with instructions that it be dismissed without prejudice. Missouri ex rel. Koster v. Harris, No. 14-17111 (9th Cir. Nov. 17, 2016).
Privilege under State FOIA: Communications among AG Offices
An exemption from state Freedom of Information Act (FOIA) laws for privileged communications applies to discussions among attorneys general offices about potential amicus briefs, according to the New Hampshire Supreme Court. New Hampshire Right-to-Life made three requests under New Hampshire’s Right to Know law for documents and materials related to Planned Parenthood of Northern New England. The state provided some documents but declined to produce others, arguing that they contained information exempt from disclosure under the law. The plaintiffs filed a complaint for injunctive relief and the state provided the withheld documents to the trial court for in camera review. After the court generally upheld the state’s decision as to production of documents, the plaintiffs appealed, and specifically requested certain documents, including “e-mail communications between [the AG office] and such offices in other states.”
Noting that the Right to Know law should be broadly construed to “effectuate its purpose to ensure the greatest possible public access to the actions . . . of public bodies,” the court stated that the exemptions to the law would be interpreted restrictively. The law identifies as exempt from disclosure “confidential, commercial, or financial information.” The plaintiffs argued that this provision did not cover the attorney general’s claims of attorney work product. The court determined that federal law should be applied to determine whether the documents at issue were subject to the work product privilege because the documents sought were produced in connection with federal litigation challenging the state’s “buffer zone” law. The court held that, under FOIA precedents, the test for disclosure “is whether the documents would be routinely or normally disclosed upon a showing of relevance.” The New Hampshire Supreme Court adopted this reasoning in the context of the state’s Right to Know law.
The plaintiff sought e-mail messages exchanged between the New Hampshire Attorney General’s Office and offices of attorneys general in other states in connection with McCullen v. Coakley.3 These communications included draft amicus briefs and discuss the process by which the New Hampshire Attorney General’s Office decided whether to join or file amicus briefs in that case. The trial court upheld the state’s position that these documents were privileged attorney-client or work-product communications. The state Supreme Court agreed, stating, “Because these e-mail messages contain the ‘mental impressions, conclusions, opinions or legal theories of an attorney,’ [citations omitted] in connection with the McCullen litigation, we hold that they constitute opinion work product, and were properly withheld from disclosure under the Right-to-Know Law.”
Turning to the question of whether the privilege was waived because New Hampshire did not join the amicus brief, the court quoted from a previous case: “The prevailing rule is that, because ‘work product protection is provided against adversaries, only disclosing material in a way inconsistent with keeping it from an adversary waives work product protection.’”4 The court concluded: “Based upon the record before us, we cannot say that the exchange of e-mail messages between the AG and such offices in other states was inconsistent with keeping those messages, and the documents they referenced, from the plaintiffs in the buffer zone litigation.”
New Hampshire Right to Life v. Director, New Hampshire Charitable Trusts Unit, 2016 N.H. LEXIS 55 (N.H. June 2, 2016)
Georgia: AG’s Authority to Appoint Substitute Prosecutor
The Georgia court of appeals upheld the attorney general’s authority to appoint a substitute prosecutor without review by the trial court. A defendant in a DUI case had a relationship with an employee in the solicitor general’s office in Cobb County. (The county solicitor general is the local prosecutor). The solicitor general recused himself from the case and notified the attorney general, pursuant to statute. The attorney general then appointed the solicitor general from a neighboring county to act as the prosecutor in this case. The defendant moved to vacate the recusal, arguing that the prosecutor had recused himself without a hearing or the consent of the defendant. The trial court granted the motion. The state appealed.
The state argued that the defendant does not have standing to object to the recusal of a prosecutor under Georgia law. The relevant statute provides that the attorney general shall be notified of the disqualification of a solicitor general’s office “from interest or relationship” and the attorney general shall appoint a solicitor general pro tempore for the purposes of that case. The decision as to recusal is the responsibility of the individual attorney. Opposing counsel may raise the question if the prosecutor does not recuse him/herself. However, under Georgia law, “a defendant does not have a substantive right to have his case tried by a specific prosecutor.” The court held that the trial court’s order should be reversed because the defendant does not have a right to challenge the solicitor general’s voluntary recusal.
The court also addressed the state’s argument that the trial court lacked legal authority to vacate the attorney general’s appointment of a solicitor general pro tempore after the voluntary recusal. After a comprehensive revision of the statutes on the solicitor general’s office, the attorney general is “the only person then authorized to appoint a substitute prosecuting attorney pre tempore. . . . [T]he trial court no longer enjoys the same authority it once did in disqualifying and appointing substitute prosecuting attorneys.” Although the statute still provides that trial courts have the inherent authority to disqualify an attorney, they must specify the legal basis of such an order, which is then subject to appellate review. There is no similar language with respect to the appointment of a substitute solicitor general by the attorney general. The court thus reversed the trial court’s order. State v. Mantooth, 2016 Ga. App. LEXIS 396 (Ga. App. 3d Div. July 1, 2016)
Louisiana: AG’s Ability to Bring Suit in Name of State
In Louisiana, an appellate court held that state law authorized the attorney general to sue on behalf of the state itself, rather than on behalf of one of its agencies. The Louisiana Attorney General’s Office sued a number of pharmaceutical companies, asserting claims under the Louisiana Unfair Trade Practice ACT (LUTPA) and the Louisiana Medical Assistance Programs Integrity Law (MAPIL), as well as claims for fraud, negligent misrepresentation, and unjust enrichment. The plaintiffs alleged that the attorney general had brought the claims in the name of the state, rather than the agency, in order to avoid statute of limitations issues. The district court dismissed the state’s case, holding that the state Department of Health was the real party in interest, rather than the state. The attorney general appealed.
The court of appeals noted that, under Louisiana law, the state cannot bring a cause of action that is the property of one of its political subdivisions which has the right to sue and be sued. The Department of Health does have the right to sue and be sued. The court therefore reviewed the LUTPA and MAPIL, and found that the legislature had expressly given the attorney general the right to bring claims under both statutes. However, the court of appeals did not find that the attorney general could bring claims outside of these two statutes. The court therefore upheld the dismissal of the attorney general’s tort-based claims. State of Louisiana v. Abbott Laboratories, 2016 La. App. LEXIS 1938 (La. Ct. App. 1st Cir. Oct. 21, 2016)
Maryland: Duty to Defend State Statutes
The responsibilities of the Maryland attorney general in defending state statutes were described by a Maryland appellate court in a recent decision. Maryland law permits the use of “ground leases” through which people do not own land, but, instead, rent it for renewable terms of 99 years. If the lessee of the land does not pay the appropriate taxes or ground rent, the owner has the ability to enter the property and eject the lessee. In that event, the lessee then loses all equity in the property. After a series of newspaper articles about eviction of lessee tenants and their subsequent loss of all equity in property where the missed payments were far less than the value of their homes, the Maryland general assembly enacted two statutes. One required recording of all leases in a central registry, on pain of loss of a lessor’s interest in a ground lease, and the other established a lien and foreclosure system, similar to typical mortgage foreclosures. Several property owners sued, claiming the legislation was an unconstitutional regulatory and physical taking without just compensation. After nine years of litigation, the plaintiffs prevailed in the state’s highest court, although no damages were awarded. Their attorneys sought fees, and the district court awarded $5 million. The state appealed.
The Maryland Court of Special Appeals held that the fee award was improper, finding that fees were not authorized under 42 U.S.C. § 1988, the common fund doctrine or Maryland condemnation statutes and procedures. The court then turned to whether the state had maintained or defended this proceeding in bad faith or without substantial justification, which would allow the court to award fees under Maryland Rule 1-341(a). The court of appeals first pointed out that there was substantial justification for the state’s position, since the district court itself had denied cross motions for summary judgement, and had stated that the case presented genuine and novel questions of law. Turning to the question of bad faith by the state, the court stated that the General Assembly’s enactments are presumed constitutional and that a statute has “just as much right to an advocate of its validity” as a criminal defendant has to an advocate of his defense. The court specifically held, however, consistent with past Maryland decisions, that “[t]his is not to say that the Attorney General must defend a law that is undeniably unconstitutional.” That was not the case here, where the district court declined to grant the motion to dismiss, where the decision invalidating the statue was accompanied by two dissents from the opinion, and where the state accepted the decision once it was final. The court also held,
[T]he [district] court seemed to object that the State attempted to remove the case to federal court (on account of the numerous federal claims in the complaint) and to have it transferred to Baltimore City (where the majority of ground rents are located). Suffice it to say that it was no more of an exercise in bad faith for the State to assert its right to remove or transfer the case to a jurisdiction in which it could have been brought than it was for the plaintiffs to bring the case in the forum of their choice.
State of Maryland v. Braverman, 2016 Md. App. LEXIS 58 (Md. Ct. Spec. App. June 1, 2016)
New York: Who is Client of the AG?
The attorney-client privilege for communications between the attorney general and a state agency was clarified in a recent New York case. Plaintiff Waldman and another person, Ludwig, were robbed at gunpoint by Rodriguez who was convicted of the crime and sentenced. Rodriguez later received a settlement from New York City in connection with a claim of excessive force. The Office of Victim Services (OVS) notified the plaintiff of the settlement. Plaintiff Waldman and Ludwig notified OVS that they intended to pursue distribution of the settlement to themselves, as victims of the crime. OVS, represented by the attorney general, sought an injunction to prevent dissipation of the funds, and the injunction was entered. Ludwig then obtained a judgment against Rodriguez in an amount that exceeded the settlement. She presented the judgment to OVS, which successfully moved to lift the injunction, and Ludwig was paid. Waldman did not obtain judgment until after the funds were distributed to Ludwig and, when he learned that the funds were gone, he filed suit against OVS, claiming that it violated the law by failing to preserve the assets, since it had notice that he intended to file suit against Rodriguez.
In the course of the litigation, Waldman sent interrogatories to OVS, seeking information about communications between OVS and the attorney general in connection with the injunction and the payment to Ludwig. OVS refused to answer, citing attorney-client privilege. Plaintiff Waldman moved to compel, arguing that the attorney general also represented him. The lower court denied the motion, finding that plaintiff was not the client of OVS or the attorney general. The appellate court affirmed.
The court held that Waldman was not in an attorney/client relationship with OVS or the attorney general. OVS assists crime victims, but, by statute, cannot substitute itself for a crime victim and begin an action against a convicted person. Plaintiff Waldman had his own counsel when he pursued Rodriguez’s assets. The court stated that New York statutes:
[E]stablish the attorney-client relationship between the Attorney General and state agencies and offices, providing, in relevant part, that the Attorney General “shall . . . [p]rosecute and defend all actions and proceedings in which the state is interested, and have charge and control of all the legal business of the departments and bureaus of the state, or of any office thereof which requires the services of attorney or counsel, in order to protect the interest of the state . . . .
Because the plaintiff was neither a client of OVS nor of the attorney general, the court affirmed the lower court’s denial of the motion to compel. Waldman v. State of New York, 2016 N.Y. App. Div. LEXIS 4629 (June 16, 2016).
New York: AG’s Authority under Martin Act
In the latest in a series of decisions on the New York attorney general’s authority and the availability of remedies under the state’s Martin Act, New York’s highest court held that the attorney general may obtain permanent injunctive relief and that disgorgement is an available remedy. The Martin Act is the New York securities fraud statute, and it gives the attorney general broad powers to fight financial fraud. In a long-running case against American International Group, Inc. (AIG) and several of its officers, the New York court of Appeals held that the attorney general could obtain permanent injunctive relief, barring the defendants for life from participating in the securities industry and serving as an officer or director of a public company. The defendants argued that the attorney general must show irreparable harm in order to obtain the permanent injunction. Noting that the injunction sought is “one authorized by remedial legislation, brought by the Attorney General on behalf of the People of the State and for the purposes of preventing fraud and defeating exploitation,” the court held that “the standards of the public interest not the requirements of private litigation measure the propriety and need for injunctive relief” (internal quotes omitted). The court also held that disgorgement is an available remedy in Martin Act cases. The court cited the Martin Act’s clause allowing courts to “grant such other and further relief as may be proper” and stated that disgorgement “merely requires the return of wrongfully obtained profits [and] does not result in any actual economic penalty.” The court dismissed without discussing defendants’ arguments that disgorgement is barred under the Supremacy Clause. Defendants appealed to the U.S. Supreme Court on the grounds that federal securities law barred the case, but the Court denied cert. The parties then reached a settlement under which the defendants admitted their involvement in the sham transactions at issue, and agreed to disgorge $9.9 million in bonuses they had received from AIG. People of the State of New York by Schneiderman v. Greenberg, 27 N.Y.3d 490 (N.Y. Ct. App. 2016).
Texas: Eligibility for Office of Attorney General
In an unusual case challenging the qualifications of the attorney general, a Texas appellate court held that the attorney general is not part of the judicial branch of state government. A Green Party candidate for Texas attorney general challenged the results of the 2014 attorney general election on the grounds that all of the other candidates, who were licensed attorneys, were members of the judiciary and their election would violate the separation of powers clause of the state Constitution.
Appellant Osborne argued that Attorney General Paxton, the successful candidate, and the other candidates for the position of attorney general, were ineligible because they are attorneys licensed by the State Bar of Texas and therefore “defacto members of the judiciary.” According to the plaintiff, the Texas Constitution bars a member of the judicial branch from exercising any power of one of the other branches of government and, since the Texas attorney general is an executive officer of the state, the attorney candidates were ineligible. The trial court dismissed the case on summary judgment and the plaintiff appealed.
The court first outlined the definition of “judicial power” in Texas, describing it as power “to hear facts, to decide issues of fact made by pleadings, to decide questions of law involved, to render and enter judgment on facts in accordance with law as determined by the court, and to execute judgment or sentence.” This power is vested in the courts by the Texas constitution. Attorneys are “officers of the court” and must be licensed by the State Bar, but they “do not hear facts, determine issues of fact or law, render judgment or execute judgments.” Prior Texas case law held that district attorneys are not part of the judiciary, so attorneys in general are not part of the judiciary just because they are licensed by the State Bar. Because restrictions on the right to hold public office are strictly construed against ineligibility, the court concluded that “attorneys do not become members of the judicial department . . . when they obtain a license from the State Bar.” Osborne v. Paxton, 2016 Tex. App. LEXIS 6062 (Tex. Ct. App. 3d Dist., June 9, 2016).
Washington: Statute of Limitations Not Applicable to AG’s Suit under CPA
The Washington Attorney General’s Office achieved a recent victory in one part of its antitrust case against a number of foreign electronics manufacturers when the Washington Supreme Court held that the state had not consented to a statute of limitations that would bar the suit. The attorney general filed suit in May 2012 against the electronics manufacturers, alleging a price-fixing conspiracy occurring between March 1995 and November 2007 involving cathode ray tubes (CRTs). The state sought damages, restitution civil penalties, and injunctive relief on behalf of the state and of its citizens. The defendants moved to dismiss the case on the grounds that the claims were time barred by the state’s Consumer Protection Act (CPA), which had a four-year statute of limitations. The trial court denied the motion, and the defendants appealed. The Washington court of appeals held that the CPA’s statute of limitations did not apply to actions for injunctive relief and restitution brought by the attorney general because the statute expressly applies only to actions for damages. The court of appeals also held that, because the case was “brought for the benefit of the state,” it was exempt from any general statute of limitations. The defendants appealed.
The state Supreme Court first discussed the state’s CPA, which authorizes enforcement by the attorney general under section 19.86.080. Subection 080 authorizes the attorney general to bring an action for injunctive relief in the name of the state or as parens patriae for state citizens. Section 19-86.090 allows private injunctive and damages suits. It also authorizes the state to sue for actual damages. The CPA’s statute of limitations bars “claims for damages under RCW 19.86.090” if not filed within four years. The Supreme Court addressed only the state’s claims under subsection 080 and specifically did not discuss the applicability of the statute of limitations to any claims brought by the state under section 090.
The court first noted that the limitations section of the CPA does not, by its terms, apply to section 080 claims and that the legislature had amended section 080 and the statute of limitations provision several times and had never sought to include claims under section 080. The defendants argued that, because the statute directs courts to “be guided by . . . decisions of the federal courts” interpreting federal antitrust statutes, the four-year statute of limitations that applies to attorney general actions under the Clayton Act should apply to this action. The court held that the Clayton Act was not similar enough to section 080 to warrant following it in this case.
As a second ground for allowing the attorney general’s suit to proceed, the state Supreme Court invoked the common law doctrine of nullum tempus, which has been codified in Washington law. The statute provides, “there shall be no limitation to actions brought in the name or for the benefit of the state, and no claim of right predicated upon the lapse of time shall ever be asserted against the state.” The court noted that it has allowed the statute of limitations to run in actions where the state “is not asserting any public right or protecting any public interest” and the defendants argue that this case is such a case because it is simply enforcing a private or individual right since the state seeks monetary restitution for consumers. The court disagreed. The CPA’s purpose is to “protect the public and foster fair and honest competition.” Citing prior decisions, the court held, “Just like administering workers’ compensation and regulating insurance, safeguarding the public by prohibiting business practices that undermine fair and honest competition is well within the State’s police power.” The court held that, when the attorney general enforces antitrust laws under section 080, he or she acts in the name of or for the benefit of the state, and the action is exempt from the statute of limitations. State of Washington v. LG Electronics, Inc. No. 91263-7 (Wash., July 14, 2016).
1 300 S.W.3d 152 (Ky. 2009).
2Id. at 173.
3 134 S. Ct. 2518, 189 L. Ed. 2d 502 (2014)
4 Bourne v. Arruda, 2012 U.S. Dist. LEXIS 97986 (D.N.H. 2012)