Emily Myers, NAAG Antitrust Chief Counsel and NAGTRI Chief Editor
This is another in our series reporting on recent decisions from across the country affecting the powers and duties of state and territory attorneys general.
Attorney General is Not Proper Defendant in Federal Civil Rights Case
The city of Birmingham adopted an ordinance raising the minimum wage for workers in the city. The ordinance was enforceable through a lawsuit by an affected employee who was not receiving an appropriate wage. The Alabama legislature passed a statute (Act. No. 2016-18) that preempted all local ordinances by voiding any local law that required employers to pay wages higher than state or federal law mandates. Two African-American employees sued several state officials, including the attorney general, alleging that Act 2016-18 violated the Equal Protection clause. The court of appeals addressed the question of whether the plaintiffs had Article III standing to sue the attorney general.
During the time that Act 2016-18 was being considered by the legislature, the Birmingham City Council passed an ordinance that would have raised the minimum wage in the city by 39 percent immediately, rather than over a two-year period, as had previously been contemplated. Businesses in Birmingham expressed great concern, and the attorney general issued a press release that stated that under Alabama law, the ordinance could not take effect immediately. The press release concluded, “The Alabama Legislature is currently addressing this issue and I expect it will be resolved shortly without adversely affecting the citizens of Birmingham.”
Plaintiffs’ complaint alleges that Act 2016-18 violated the Equal Protection clause because, among other reasons, the act “perpetuates Alabama’s de jure policy of white supremacy, in particular its suppression of local black majorities through imposition of white control by state government.” Plaintiffs sought a declaratory judgment that the Act violates the Equal Protection Clause, an injunction directing the attorney general to notify the public that the Act is unconstitutional, and an injunction ordering the Birmingham city council to enforce the city’s minimum wage law.
The district court dismissed all the claims. A panel of the Eleventh Circuit reversed only the dismissal of the claim against the attorney general, because his broad authority to interpret and enforce a state statue gave an Article III connection to the plaintiffs’ injuries. The panel also held that the attorney general had a sufficient connection to the enforcement of the Act to make him a proper defendant under Ex parte Young, and that the plaintiffs had alleged sufficient discriminatory intent to state a plausible claim.
The Eleventh Circuit, sitting en banc, first outlined the requirements for standing. First, the plaintiff must have suffered an injury in fact. Second, there must be a causal connection between the injury and the challenged action of the defendant—it must be “traceable” to the defendant’s conduct. Third, it must be likely that a favorable judgment will redress the injury. The court found that the injury in fact requirement was satisfied in this case, but that the other two parts of the test were not.
Turning to the question of traceability, the court read the plaintiffs’ complaint to assert two theories about the attorney general’s conduct. First, in what the court called the ex ante claim, the plaintiffs’ alleged that the attorney general “refused to perform his statutory duty to inform the Legislature and the Governor of Act 2016-18’s unconstitutionality” and in fact issued a press release that implied that Birmingham employers would not have to comply with the minimum wage ordinance. Second, in what the court called the ex post claim, the plaintiffs argued that because the attorney general is either actually enforcing or threatening to enforce the law, the city of Birmingham is not implementing the ordinance.
With respect to the ex ante claims, the court disagreed that the attorney general implied that employers would not have to comply with the ordinance. The court noted that the attorney general twice said that employers would have a reasonable time to comply. Nor did the court agree that the attorney general’s press release stated his expectation that the state legislature would invalidate the ordinance. More important, the court held that the attorney general had no affirmative legal duty to inform the governor and legislature of the Act’s unconstitutionality. The court dismissed plaintiffs’ arguments that statutes requiring the attorney general to give his opinion, when asked to do so by certain state officials, were applicable here. No appropriate official had asked the attorney general for his opinion here. A statute that provided that the attorney general “may” examine statutes for clarity and constitutional validity only authorized such examination and did not require it.
Turning to the ex post theory, the court concluded that there is no threat of enforcement by the attorney general because the Act has no enforcement mechanism, and merely declares the city ordinance void. The Act would serve as a defense to an action by an employee against her employer but would not be “enforced” by any party.
The court next addressed the third prong of the standing test: redressability. This prong requires that a decision in the plaintiffs’ favor significantly increase the likelihood that plaintiffs would obtain direct redress for their injury, and that the redress come from the effect on the defendant of the court’s judgment. In this case, plaintiffs are seeking a higher wage from their employers, who are not parties to the suit, so the court concluded that they could not obtain direct redress. With regard to indirect redress, the court noted that a new mayor and city council had been elected since the original ordinance was enacted, and the city had not committed to enforcing the ordinance if the court ordered the attorney general to declare it unconstitutional. The court also noted that Birmingham employers would likely continue to refuse to pay significantly higher wages for as long as possible. Thus, the likelihood of plaintiffs’ obtaining a higher wage would not be significantly increased by the relief they are seeking from the attorney general. Lewis v. Governor of Alabama, No. 17-11009 (11th Cir. Dec. 13, 2019).
Attorney General CID is Enforceable Despite Attorney-Client and Work-Product Claims
The Attorney General of Massachusetts opened an investigation of Facebook’s policies and protections with respect to user data, under G.L. c. 93A, which prohibits “unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce” within Massachusetts. Section 6(1) of the statute provides “whenever . . . [the Attorney General] believes a person has engaged in or is engaging in any method, act or practice declared to be unlawful by this chapter, [he or she] may conduct an investigation to ascertain whether in fact such person has engaged in or is engaging in such method, act or practice.”
The Attorney General issued three civil investigative demands (CIDs) during her investigation. Facebook, which had retained a law firm to undertake an internal investigation, declined to provide, on work product and attorney-client privilege grounds, certain information generated in the course of its investigation about the specific apps, groups of apps, and app developers that Facebook claims to have flagged as potentially problematic.
The court first addressed the work product doctrine as interpreted by Massachusetts courts, and determined that the sole issue in this case is whether Facebook’s documents were “prepared in anticipation of litigation or for trial.” The attorney general argued that Facebook’s motive for identifying apps who may have misused consumer data was to repair and enhance its public reputation after widespread criticism of its practices. The attorney general also argued that the investigation was not a new process established because of the prospect of litigation, but was a continuation of Facebook’s regular business practices, which it describes as engaging in “regular and proactive monitoring of apps” and investigating “for potential app violations.” The court agreed with the attorney general, concluding “The record shows that Facebook, as part of its normal business operations, has been engaged in a continuous review of Platform apps for possible violations of its Policies since 2012, and that the [investigation] is just another iteration of that program.”
Even if the material at issue had been prepared in anticipation of litigation, the court held that it would not be protected by the work product doctrine because that doctrine can be overcome if the party seeking the information has a substantial need for it and cannot obtain it through other means. That is the case here. “Only Facebook knows the identity of these apps and developers, and there is no other way for the Attorney General to obtain this information on her own.”
Turning to the attorney-client privilege claims, the court held that the identify of specific apps and developers that have been flagged by Facebook may be a fact underlying attorney-client communications, but the fact itself is not protected, and the fact cannot be protected simply by sharing it with attorneys. Citing a recent Massachusetts case, the court held that Facebook cannot “rely on an internal investigation to assert the propriety of its actions to third parties and simultaneously expect to be able to block third parties from testing whether its representations about the internal investigation are accurate.” Attorney General v. Facebook. Inc., No. 1984CV02597-BLS1, (Suffolk Super. Ct. Jan. 17, 2020).
Attorney General’s Role in Use of Forfeited Assets
A district attorney in Lancaster County, Pennsylvania (Stedman) filed an original action in Commonwealth Court (the statewide appellate court) against the county commissioners alleging that they were attempting to inhibit the use of funds exclusively committed to his control through forfeiture. He also named the Pennsylvania Attorney General as an Indispensable/Non-Adverse party. Original actions may be filed in Commonwealth Court only against certain parties, including “(1) against the Commonwealth government, including any officer thereof, acting in his official capacity. . . .”
Stedman alleged that he had sole control over the funds from forfeitures subject to two layers of oversight: the state controller, who must perform an audit of all funds used by the district attorney; and the attorney general, who reviews the controller’s audit and who also, pursuant to the statue, adopted reporting procedures and guidelines for district attorneys. Using forfeited funds, Stedman had leased a car for the use of his office, after obtaining a certification from the controller authorizing the lease. The commissioners insisted that the lease should have been authorized by them as a county contract. Stedman argued that they had no authority over forfeiture funds, and that their investigation is an unlawful audit that usurps the attorney general’s authority. He sought a declaratory judgment that only the controller or attorney general can audit or investigate his use of forfeited funds.
The commissioners argued that the court lacked subject matter jurisdiction because the county and its commissioners are not “the Commonwealth government or officers thereof,” and the attorney general is not an indispensable party because Stedman is not seeking relief against the attorney general. Stedman argued that his requested declaration will have an impact on the statutory role of the attorney general under the Forfeiture Act.
The Commonwealth Court agreed that the county government was not included in the statutory definition of “the Commonwealth government or officers thereof.” The court noted that past decisions have held that “the mere naming of the Commonwealth or its officers . . . does not conclusively establish this court’s jurisdiction . . . joinder of such parties when they are only tangentially involved is improper.” Instead, whether a party is indispensable involves “whether justice can be accomplished in the absence of the party.”
In this case, the attorney general has a “general duty to uphold the laws of this Commonwealth” but this is not enough to make him a proper respondent. “[I]n order to bring suit against the attorney general, the attorney general must be the official who is charged with the enforcement and administration of [the statute at issue].” The role of the attorney general must be “more than ‘minimal’ or merely ‘ministerial’ in nature.” The Forfeiture Act provides that the county (through one of its officials) must “create an annual audit of all forfeited property and proceeds” which is submitted to the attorney general. Because the county, not the attorney general, is creating the audit, the court did not find any power in the attorney general to conduct an audit of the forfeited assets. The attorney general is “merely the recipient” of the audit from the county and does not have any oversight responsibility in connection with the county audit.
The court concluded that the legal dispute was localized and the attorney general “is only tangentially involved in the dispute, possessing no power or duty to enforce or administer the statutory provisions that . . . are at issue.” Stedman v. Lancaster Cty. Bd. of Commissioners, 2019 Commw. LEXIS 1040 (Pa. Commw. Ct., Nov. 20, 2019).
Attorney General Opinion and Standing of Legislature
A Michigan statute, 2018 PA 608, amended the Michigan election law with respect to petitions, limiting the total number of signatures from any congressional district that could be counted for validity. The statute also added a requirement that paid petition circulators file an affidavit with the Secretary of State disclosing their paid status and that forms include a check-box in which the circulator indicates that they are paid. The secretary of state asked the attorney general for an opinion on the constitutionality, under the state constitution, of these provisions.
The attorney general issued an opinion that the limitation on signatures based on geography violated the petition and amendment provisions of the state constitution, neither of which limit the number of signatures that can be gathered from one geographic region. She also opined that the requirement for circulators to reveal on the petition that they were paid did not further any government interest and could expose circulators to harassment, which was also unconstitutional.
The following day, the League of Women Voters and others filed a complaint against the secretary of state for declaratory and injunctive relief, seeking a declaration that the provisions were unconstitutional and enjoining the secretary of state from enforcing them. Shortly thereafter, both houses of the Michigan legislature filed a complaint challenging the attorney general’s opinion and seeking declarations that 2018 PA 608 is constitutional and must be enforced. The lower court determined that the legislature did not have standing to sue because it had not demonstrated “a particularized injury that would be detrimentally affected in a manner different from the citizenry at large,” but it treated the legislature’s briefs as amicus submissions. The court then granted summary judgement to the League of Women Voters on their constitutional claims. The legislature appealed.
The appellate court first noted that even though the lower court held the legislature did not have standing, its arguments were considered by the lower court. The appellate court agreed that the legislature did not have standing to seek a declaratory judgment in this case. The statute that authorizes declaratory judgments requires an actual case and controversy. Michigan courts have interpreted this provision to require that the judgment is necessary to “guide a plaintiff’s future conduct in order to preserve the plaintiff’s legal rights.” No matter how the court decides this case, the legislature will still have the authority to enact laws. The court reviewed past Michigan precedent involving claims by individual legislators and held that the legislature was suing to reverse actions by a member of the executive branch. The court held that prior Michigan caselaw “stands for the proposition that courts should not confer standing in matters that have the real possibility of infringing upon the separation of powers.” The court concluded that the statute was not enacted to benefit the legislature, and the legislature “does not have a special interest in voter-initiated petitions that differs from the citizenry at large.”
Finally, turning to the legislature’s argument that if the lower court opinion is upheld, the result will be “a single member of the executive branch being able to exercise unchecked veto power over a bill that has already been passed and enacted into law.” The appellate court noted that the lower court had analyzed the attorney general’s legal conclusions, the appellate court had also done so, and it was likely that the state supreme court would also do so. “In light of that review process, it cannot be concluded that the Attorney General has “unchecked veto power” over PA 608.” League of Women Voters of Michigan v. Sec’y of State, 2020 Mich App. Lexis 709 (Mich. Ct. App., Jan. 27, 2020).
Attorney General’s Authority to Prosecute Law Enforcement Officer-Involved Deaths
The governor of New York issued an Executive Order appointing the attorney general as special prosecutor in matters where the death of an unarmed civilian was caused by a law enforcement officer or in “instances where, in the [attorney general’s] opinion, there is a significant question as to whether the civilian was armed and dangerous at the time of his or her death.” A civilian was killed by a police officer in Troy, New York, and the local district attorney informed the attorney general that the Executive Order did not apply because the civilian’s use of his vehicle made him an armed civilian. The district attorney convened a grand jury which found that the officer’s use of force was justified.
Concerns were raised about the civilian’s death, and the governor issued another Executive Order, authorizing the attorney general to investigate and prosecute “any and all unlawful acts or omissions or alleged unlawful acts or omissions by any person arising out of, relating to, or in any way connected” with the death of the civilian and the subsequent investigation, including the grand jury presentation. The attorney general empaneled a grand jury to investigate alleged misconduct. That grand jury charged the district attorney with two counts of official misconduct and one count of perjury. The district attorney moved to dismiss the indictment on the grounds that the attorney general lacked jurisdiction to prosecute the perjury count, and the lower court agreed. The attorney general appealed.
The appellate court reversed. New York’s Executive Law §63(13) provides that the attorney general shall prosecute any person for perjury committed during the course of any investigation conducted by the attorney general “pursuant to statute.” The district attorney argued that the governor’s executive orders were not “statutes” within the meaning of Executive Law §63, and the attorney general argued that another provision of the law, Exec. Law §63(2), gives the attorney general authority “whenever required by the governor” to “appear before the grand jury . . . for the purpose of managing and conducting . . . criminal actions or proceedings. . . .” The district court interpreted this law to allow the attorney general to prosecute perjury only in cases where a statute gives the attorney general authority to investigate.
The appellate court interpreted Executive Law 63 to permit and require the governor to define, through the Executive Order, the scope of the attorney general’s authority, but the investigation is “still conducted pursuant to that statute, albeit within a scope defined by the executive order.” The statute “gives the [attorney general] power, but only when the governor “requires[s]” [the attorney general] to act. . . . Relatedly, the governor would have no authority to give powers to the attorney general—through an executive order or otherwise—without the legislature having granted the governor the ability.” The court concluded that the attorney general’s perjury claim should not be dismissed. People v. Abelove, 2019 N.Y. App. Div. Lexis 8499 (N.Y. App. Div. Nov. 21, 2019).
Attorney General’s Role in Quo Warranto Proceedings
The attorney general’s role in quo warranto proceedings in California was explained by a state appellate court. The case involved the mayor of a town who wanted to continue to serve as a board member of a water replenishment district. California statutes prohibit the holding of multiple public offices where there is a possibility of a significant clash of duties or loyalties between them.
A quo warranto action, codified in California’s Code of Civil Procedure, allows an action to be brought “by the attorney general, in the name of the people of this state, upon his own information, or upon complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office . . . .” Although the attorney general is named in the statute, “usually the action is filed and prosecuted by a private party who has obtained the consent of the attorney general.” The attorney general’s “gatekeeping” function protects public officers from frivolous lawsuits. The procedures by which the attorney general can authorize another to bring a quo warranto action are in the California Code of Regulations, and provide, “the attorney general may at all times, at any and every stage of the said proceeding, withdraw, discontinue or dismiss” the case or may assume the management of the case at any time.
The defendant argued that the attorney general could not authorize the district attorney to sue because the attorney general is not a “private party” eligible to serve as a relator. The court noted past attorney general opinions have not interpreted the law’s language to exclude public officers as relators and cited a long line of cases in which public entities have brought quo warranto actions with the attorney general’s permission. The court held that the attorney general had properly deputized the district attorney in this case.
The defendant also argued that because he had been reelected to both offices ten months after the initial suit was filed, the district attorney needed to apply again to the attorney general for permission to file a quo warranto action. The court held, “There is no need to seek authority from the attorney general to maintain an already-filed quo warranto lawsuit because the attorney general at any time may assume control of the prosecution of the action or dismiss it.” The court concluded that the defendant could not legally serve in both offices. People ex rel. Lacey v. Robles, 2020 Cal. App. Lexis 73 (Cal. Ct. App. 2d Dist., Jan. 29, 2020).