Hawaii ― In answering a question certified to it by a federal district court, the Hawaii Supreme Court ruled that county prosecutors ― not the state attorney general ― has final policymaking authority to prosecute crimes in a county. Pueo McGuire brought a §1983 action in the U.S. District Court for the District of Hawaii alleging malicious prosecution against the County of Hawaii, the county prosecutor, and three deputy prosecutors in their official and individual capacities. The prosecutors moved to dismiss, arguing (among other things) that they were entitled to sovereign immunity. They are only entitled to sovereign immunity, however, if they are state, not county, officials. The federal district court certified to the Hawaii Supreme Court the question whether “a county Prosecuting Attorney and/or Deputy Prosecuting Attorney act on behalf of the county or the state when he or she is preparing to prosecute and/or prosecuting criminal violations of state law[.]” The Hawaii Supreme Court ultimately ruled that county prosecutors act on behalf of the county, not state. In reaching that conclusion, the court addressed the power of the attorney general with respect to county prosecutions.
The Hawaii Supreme Court answered the certified question by applying the test set out by the U.S. Supreme Court in McMillian v. Monroe Cnty., 520 U.S. 781 (1997). McMillian holds that a county official’s conduct can result in liability (i.e., he is not entitled to sovereign immunity) if “the official functioned as the policymaker of the local government for the particular area or issue in question.” Whether that is so depends upon the official’s “actual function,” that is, whether the state or the county exercises “control” over the official. Applying Ninth Circuit precedent, the Hawaii Supreme Court explained that “this examination involves whether the entity can ― and does ― actually influence official conduct [;] the mere existence of the ability to control is not enough.”
Critically here (and in contrast to California), “missing from the Hawai’i Constitution and Hawai’i statutes are provisions that grant the attorney general ‘direct supervision’ over county prosecutors or the ability to take ‘full charge of any investigation or prosecution.’” The court noted that although the attorney general “is tasked generally with state law prosecutions,” the Hawaii Constitution “advances home rule, local government with minimal state interference.” And “state law grants each county the ‘power to provide by charter for the prosecution of all offenses and to prosecute for [state law offenses] under the authority of the attorney general of the State.’”
With that background, and relying on its decision in Amemiya v. Sapienza, 629 P.2d 1126 (Haw. 1981), the court concluded that “the degree of control exercised by Hawai’i’s Attorney General over county prosecutors is slight.” Amemiya held that, while “the attorney general [i]s the state’s chief law enforcement officer, the Honolulu County prosecutor ‘has been delegated the primary authority and responsibility for initiating and conducting criminal prosecutions within [their] county jurisdiction.’” (Citation omitted.) It is true that “the state attorney general retains ‘residual authority to act,” which “allows the AG to ‘supersede’ the public prosecutor and intercede in ‘compelling circumstances.’” (Citation omitted.) But “[t]he AG’s residual authority may only be invoked where it is ‘clearly apparent that compelling public interests require the attorney general’s intervention in the particular matter.’” And as Amemiya held, “[t]he attorney general’s limited ability to supersede a county prosecuting attorney’s authority in compelling circumstances does not equate to ‘control.’” Accordingly, held the court here, “county prosecutors act on behalf of the county — not the state ― when preparing to prosecute or prosecuting offenses.” (The Hawaii Supreme Court then declined to extend state sovereign immunity to county prosecutors.) McGuire v. County of Hawai’i, 2025 Haw. LEXIS 91 (April 8, 2025)
Massachusetts― In the course of addressing the constitutionality of a state statute, the Massachusetts Supreme Judicial Court held that the Massachusetts Attorney General has the authority to enforce the statute even though the statute does not expressly grant the attorney general that power. The Massachusetts Legislature enacted the Massachusetts Bay Transportation Authority (MBTA) Communities Act, G. L. c. 40A, §3A (§3A or the Act) to address the state’s housing crisis “by requiring cities and towns that benefit from having local access to MBTA services to adopt zoning laws that provide for at least one district of multifamily housing ‘as of right’ near their local MBTA facilities.” The attorney general sued the Town of Milton after the town voted down a proposed zoning bylaw that would have satisfied the Act’s requirements as implemented through guidelines issued by the Executive Office of Housing and Livable Communities (HLC).
The Massachusetts Supreme Judicial Court first rejected the town’s contention that the Act “violates the separation of powers doctrine because the act vests HLC with the power to make fundamental policy decisions.” The court then rejected the town’s argument “that the Attorney General is unauthorized to bring the instant action because, although §3A provides for certain consequences for noncompliance, a suit in equity to enforce the provision is not one of them.” The court explained that it “long has recognized that the Attorney General has broad powers to enforce the laws of the Commonwealth.” In addition to the attorney general’s statutory power to “institute … such criminal or civil proceedings … as [s]he may deem to be for the public interest,” G. L. c. 12, §10, the attorney general “‘has a common law duty to represent the public interest and enforce public rights.’” Based on those powers, “the Attorney General’s enforcement power is not dependent upon whether a particular statute happens to reference it. Given the Attorney General’s broad authority to act in the public interest, and the fact that the public has an interest in the enforcement of §3A, the Attorney General is empowered to enforce §3A, notwithstanding the lack of any reference to such power in that statute.” (Citations omitted.)
The court disagreed with the town’s assertion that “the Attorney General may not bring an enforcement action because §3A already includes consequences for noncompliance, i.e., ineligibility for certain funding sources.” Adopting that argument would “thwart the Legislature’s purpose” because “the only consequence to an MBTA community for failing to comply with the act would be the loss of certain funding opportunities.” The court added that “the town’s interpretation effectively nullifies the power afforded to the Attorney General under G. L. c. 12, §10. In light of the Attorney General’s unique and well-established role as a protector of public rights,” the court “conclude[d] that the penalties provided for in the act do not preclude the equitable relief that the Attorney General is authorized to pursue under her broad statutory power.”
The court ultimately ruled in favor of the town based on the town’s third argument, that the guidelines promulgated by the HLC were ineffective because they failed to comply with the state’s Administrative Procedure Act. Attorney General v. Milton, 248 N.E.3d 635 (Mass. Jan. 8, 2025)
Oklahoma― In answer to a certified question, the Oklahoma Supreme Court held that the Oklahoma Attorney General may not “take and assume control” of the “defense of the state’s interests” over the Governor’s objection in a case “in which the Governor of Oklahoma is named as a defendant in his official capacity for his role in entering into certain tribal-gaming contracts on behalf of the State of Oklahoma.”
In August 2020, four Native American tribes filed suit in federal district court seeking to invalidate tribal-gaming compacts for casino operations in Oklahoma entered into between Governor Stitt and four other tribes under the Indian Gaming Regulatory Act (IGRA). The plaintiff tribes ― seeking to reverse the Department of the Interior’s approval of the compacts ― argued that the compacts violate IGRA and Oklahoma law. The Governor has been represented by private counsel since the lawsuit began. In July 2023, the Oklahoma Attorney General filed a notice of appearance, asserting that he is authorized to take over the defense. On the merits, he contended that the compacts are invalid and that the Governor lacks the power to execute them unilaterally. That same day, the Oklahoma Solicitor General also filed a notice of appearance “as attorney for J. Kevin Stitt, in his official capacity as the Governor of the State of Oklahoma, solely for the purpose of protecting the interests of the State of Oklahoma.” The Governor moved to strike those two appearances and maintained that the attorney general lacks the statutory authority to replace outside counsel already retained by the Governor. The U.S. District Court for the District of Columbia then certified to the Oklahoma Supreme Court the question whether the attorney general could take over the defense of the case over the Governor’s objection.
The Oklahoma Supreme Court found that Oklahoma statutes vested authority with both the Governor and the attorney general. On the one hand, 74 O.S. 2011, §6 provides that “[t]he Governor shall have power to employ counsel to protect the rights or interests of the state in any action or proceeding, civil or criminal, which has been, or is about to be commenced, and the counsel so employed by him may, under the direction of the Governor, plead in any cause, matter, or proceeding in which the state is interested or a party, . . . .” On the other hand, 74 O.S. Supp. 2022, §18(b) provides that
[t]he duties of the Attorney General as the chief law officer of the state shall be . . . [t]o initiate or appear in any action in which the interests of the state or the people of the state are at issue, or to appear at the request of the Governor, the Legislature, or either branch thereof, and prosecute and defend in any court or before any commission, board or officers any cause or proceeding, civil or criminal, in which the state may be a party or interested; and when so appearing in any such cause or proceeding, the Attorney General may, if the Attorney General deems it advisable and to the best interest of the state, take and assume control of the prosecution or defense of the state’s interest therein[.]
The Oklahoma Supreme Court concluded that the Oklahoma statutes were a wash, and did not resolve the issue. It then looked to the Oklahoma Constitution, which “states that ‘[t]he Supreme Executive power shall be vested in a Chief Magistrate, who shall be styled ‘The Governor of the State of Oklahoma.’ Okla. Const. art. VI, §2 (emphasis added). Section 8 of Article VI further provides that ‘[t]he Governor shall cause the laws of the State to be faithfully executed, and shall conduct in person or in such manner as may be prescribed by law, all intercourse and business of the State with other states and with the United States, and he shall be a conservator of the peace throughout the State.’ Okla. Const. art. VI, §8.”
The Oklahoma Supreme Court found the Governor’s constitutional powers dispositive, and therefore held that “the Governor may continue to use his chosen counsel to represent the State’s interests in the present case.” The court explained that, “[w]hile the Oklahoma Constitution does not explicitly describe the Governor’s authority over the other executive branch offices, we believe that a hierarchy is clearly contemplated by the above-quoted language in Article VI, Section 2.” Continuing, the court declared that “[t]he seemingly broad statutory power granted to the Attorney General to direct and control litigation does not operate to override the Governor’s constitutional role as Chief Magistrate or his authority to bring suit. Although both the Governor and the Attorney General possess similar authority, the Governor is ultimately the leader of the executive branch. Under the hierarchy contemplated in the Oklahoma Constitution, the Governor has the right to represent the State’s interests in the present case.”
Returning to the state statutes on the issue, the Oklahoma Supreme Court found nothing in the provisions granting the attorney general broad litigation power that “would subordinate the Governor’s express power to select his own counsel to that of the Attorney General. To the contrary, the Governor’s authority to select and retain his own counsel is specifically expressed by two unambiguous statutes.” Put another way, both the Governor and the attorney general are empowered to represent the state in litigation; “the Governor’s specific authority runs concurrently with the general authority of the Attorney General.” All told, “the Attorney General’s statutory authority to take and assume control of the State’s defense is subordinate to the Governor’s constitutionally-granted Supreme Executive power, and statutorily-granted authority which gives him the right to represent the State and choose his counsel in defense of the action.”
Finally, the Oklahoma Supreme Court rejected the attorney general’s contention that “the State of Oklahoma, and not the Governor, is the real party in interest. Thus, the Attorney General claims that he is simply seeking to represent the State of Oklahoma’s interests by taking and assuming control of the Governor’s defense.” The Court reasoned that “[t]he Governor, in his official capacity, is answerable on behalf of the State in the underlying matter.” He therefore “possesses statutory and constitutional authority to represent the interests of the State of Oklahoma in that proceeding. . . . From this conclusion, it flows logically that the Governor’s participation as a named defendant in the underlying case includes the choice of counsel who will represent the Governor’s position.”
The Oklahoma Supreme Court closed by saying that the attorney general might be able to appear in the case ex officio. The court “defer[red] to the federal court to determine that portion of the State’s interests, if any, which warrants additional involvement by the Attorney General versus those views which are adequately represented by the other parties in the case.” Cherokee Nation v. U.S. Dep’t of Interior, 564 P.3d 58 (Okla. Jan. 22, 2025)
