Guam – A federal district court struck the Government of Guam as a plaintiff in an action brought by the Attorney General of Guam against the Governor of Guam and a Guam agency. The federal government allocated funds to Guam under the American Rescue Plan Act of 2021. The Governor and agency sought to obligate some of those funds toward a particular medical campus. The Attorney General filed suit alleging that this use of the funds violated the Organic Act of Guam, the American Rescue Plan Act, and other Guam laws. In this particular proceeding, the Governor and agency moved to strike the Government of Guam as a plaintiff, asserting “that the Governor, as the chief executive officer of Guam, holds the executive power of the Government of Guam, not the Attorney General. The Defendants argue that the ‘Attorney General’s authority to direct and control litigation on behalf of the Government of Guam . . . is necessarily limited by the Governor’s supreme executive power and duty to ensure faithful execution of the law under the Organic Act.’” The district court agreed.
The district court noted that the Organic Act vests “[t]he executive power of Guam” in the “Governor of Guam” and specifies that “[t]he Governor shall have general supervision and control of all the departments, bureaus, agencies, and other instrumentalities of the executive branch of the government of Guam” and “shall be responsible for the faithful execution of the laws of Guam and the laws of the United States applicable in Guam.” By contrast, the Organic Act says merely that “[t]he Attorney General of Guam shall be the Chief Legal Officer of the Government of Guam.” The court found that the Attorney General’s powers and duties are founded in common law and statute only.
The court concluded that, “[b]ased on a plain reading of the Organic Act, ‘the Governor is the executive officer of the territory and has authority over the Attorney General.’ The Governor is vested with the responsibility for the faithful execution of the laws of Guam, so she – not the Attorney General – has the ultimate authority to speak on behalf of and make policy decisions for the Government of Guam. ‘The Attorney General is [merely] the attorney representing his client, the Government of Guam[.]’” (Citation and footnote omitted.) The court found that a statute upon with the Attorney General relied “recognizes the Attorney General’s power to bring an action on behalf of Guam representing the citizens as a whole,” but “does not expressly authorize suit on behalf of the Government of Guam.” [Government of Guam v. Guerrero, 2026 U.S. Dist. LEXIS 78077 (D. Guam April 7, 2026)]
Montana – The Montana Supreme Court held, in the course of dismissing a proceeding alleging attorney misconduct by Montana Attorney General Austin Knudsen, that “the Montana Attorney General is subject to regulation under the Montana Rules of Professional Conduct for the performance of his duties as an attorney.” Within its lengthy opinion, the Montana Supreme Court addressed “[w]hether the Commission on Practice’s discipline of the Attorney General for alleged violations of the Montana Rules of Professional Conduct in the course of his elected official duties violates the separation of powers under the Montana Constitution.” (Italics changed.) The Attorney General “argues the constitutional separation of powers preempts the Commission’s regulation of him as an attorney, to the extent the regulation arises from his conduct as the Attorney General. Because the Commission is ultimately responsible to the Supreme Court, Knudsen argues such regulation necessarily violates the separation of powers because it allows this Court to pass judgment on the exercise of his executive office.” The court concluded, however, that “it would be not only unconstitutional but also unwise to grant the Attorney General authority to supervise hundreds of attorneys while exempting him from the basic ethical and competence standards expected of every lawyer.” Thus, “the Attorney General is subject to regulation under the Commission and this Court’s authority to regulate the practice of law.”
The court added a caveat, however: “In exercising that authority [ ] we must still respect the constitutional prerogatives of other constitutional branches, even of an officer who is partially subject to our regulation, and with whom we may disagree from time to time. We must carefully identify the line between permissible regulation and impermissible exercise of powers assigned to another governmental branch.” That means “the Attorney General must be free to discharge his duties as an Executive Branch officer, including taking controversial positions or issuing critical statements of courts, without continual concern about the Commission’s, and ultimately this Court’s, approval of his tactics.” [In re Knudsen, 582 P.3d 87 (Mont. Dec. 31, 2025)]
Nebraska – The U.S. Court of Appeals for the Eighth Circuit held that sovereign immunity bars third-party depositions of state officers, at least where (as here) such depositions “infringe[] on the State’s autonomy and threatens its treasury.” A Nebraska State Police (NSP) officer shot and killed Print Zutavern following a standoff that arose in the wake of a manic episode suffered by Zutavern. Zutavern’s estate (represented by Mick) filed a §1983 action against the local sheriff’s office and several of its members, and various NSP officers. Mick sought discovery from, among others, NSP―which wasn’t a party to the suit. Specifically, Mick sought documents and a Rule 30(b)(6) deposition from NSP regarding NSP’s training on various topics. Although NSP turned over some documents, it refused to sit for the deposition. NSP ultimately moved the district court to quash the deposition subpoena on sovereign immunity grounds. The district court denied the motion to quash. It relied on In re Missouri Department of Natural Resources, 105 F.3d 434 (8th Cir. 1997) (Missouri DNR), which stated that “[g]overnmental units are subject to the same discovery rules as other persons and entities having contact with the federal courts. . . . There is simply no authority for the position that the Eleventh Amendment shields government entities from discovery in federal court.” The Eighth Circuit reversed, held that the quoted language from Missouri DNR was dicta, and ruled that sovereign immunity shields NSP from the deposition subpoena.
The Eighth Circuit reiterated that “the two aims of the Eleventh Amendment [are] protection for a state’s autonomy and protection for its pocketbook.” It found that Missouri DNR simply held that the district court’s decision not to quash a “non-disruptive third-party document subpoena” did not implicate those two concerns. Its broader statement about governmental entities, discovery, and sovereign immunity was therefore dicta. The Eighth Circuit here went on to reject that dicta. It found the two aims of sovereign immunity implicated here, where “NSP would need to produce five law enforcement officers to comply with the subpoena,” each of whom would have to spend five hours preparing for depositions that could last up to seven hours, all “represented by state attorneys who would need to spend significant effort preparing and defending the depositions.” Stated the court: “Such a discovery request infringes on Nebraska’s autonomy by subjecting it to the process of a judicial tribunal, interferes with public administration, and is unlike the simple document subpoena in Missouri DNR that was a narrow and minimally disruptive third-party request.” The court noted that, given Missouri DNR, it could not adopt a “categorical ruling” “that state sovereign immunity shields States from all third-party discovery subpoenas.” But it observed that other circuits have adopted that categorical rule. [Mick v. Gibbons, 171 F.4th 1097 (8th Cir. April 1, 2026)]
Texas – The Texas Court of Appeals enjoined enforcement of administrative rules issued by the Texas Attorney General that required “local prosecutors in Texas’s most populated counties to prepare and produce reports containing multiple categories of information regarding criminal matters.” Section 41.006 of the Texas Government Code provides that “[a]t the times and in the form that the attorney general directs, the district and county attorneys shall report to the attorney general the information from their districts and counties that the attorney general desires relating to criminal matters and the interests of the state.” Relying on that authority the Texas Attorney General adopted administrative rules (the Rules) imposing significant reporting requirements upon district and county attorneys. “Noncompliance with the Rules is considered ‘official misconduct’ . . . and permits the Attorney General to file a petition for quo warranto to remove a county or district attorney from office.” (Citation omitted.) A number of district and county attorneys filed suit “challeng[ing] the validity of the Rules, arguing that the Attorney General lacked rulemaking authority to promulgate the Rules under Section 41.006.” The trial court granted a temporary injunction, and the court of appeals affirmed (except to the extent it enjoined enforcement of the Rules against nonparties).
The court of appeals reasoned that “[a]lthough the Attorney General is a constitutionally created officer, Tex. Const. art. 4, § 1, the Office of the Attorney General is part of the executive branch and therefore has rulemaking authority only if the Legislature grants it such authority.” Further, “[t]he existence of an agency’s rulemaking power cannot be conferred by implication.” The court then found that
Section 41.006 does not contain the required express rulemaking authorization. True, that provision empowers the Attorney General to “direct[]” district and county attorneys to report to him. But the court held “that ‘direct’ does not confer express rulemaking authority here.” [Paxton v. Garza, 729 S.W.3d 483 (Tx. Ct. App. 15th Dist. Dec. 30, 2025)]
