Several recent cases have addressed the jurisdiction of state attorneys general in the areas of criminal law, charitable oversight, and common law powers.
In a case involving the criminal jurisdiction of both the federal and the territorial courts in the Virgin Islands, the territorial court (Superior Court) held that the attorney general of the Virgin Islands was authorized to prosecute a criminal case in the Superior Court without the consent of the U.S. Attorney for the Virgin Islands.
The case involved a carjacking in June 2020. On July 8, 2020, the Virgin Islands attorney general filed an information in Superior Court charging the defendant with several counts, including carjacking by force. Two weeks later, on July 22, 2020, the U.S. Attorney for the Virgin Islands filed a multiple-count indictment in the federal district court (District Court), charging the defendant with violations of both federal and Virgin Islands law.
Defendant argued that the attorney general’s criminal case should be dismissed, alleging that Virgin Islands statutes contemplate that the Superior Court’s original jurisdiction is subordinate to the District Court, and once the District Court exercises jurisdiction it deprives the Superior Court of jurisdiction. Defendant also raised double jeopardy claims. The Superior Court disagreed with both defendant’s reading of the statute and his double jeopardy claims, and held,
This is not the forum or the time to raise Double Jeopardy Clause concerns based on the District Court’s prosecution of this case and it certainly does not warrant dismissal of the entire case. [Defendant’s] Double Jeopardy concerns, when they are ripe, may be properly raised in the court where the subsequent, not initial, prosecution is.
Section 27 of the Revised Organic Act states that the U.S. Attorney for the Virgin Islands “shall also prosecute in the district court in the name of the government of the Virgin Islands all offenses against the laws of the Virgin Islands which are cognizable by that court unless, at his request or with his consent, the prosecution of any such case is conducted by the attorney general of the Virgin Islands.” Defendant argued that this language required the attorney general to get permission from the U.S. Attorney before bringing a criminal case. The court held that this language clearly meant that the attorney general of the Virgin Islands must obtain the U.S. Attorney’s consent to prosecute a case in District Court, not in Superior Court.
The opinion also noted that other Virgin Islands statutes made it clear that the attorney general has full authority to prosecute criminal cases in superior court. Title 3, § 114 of the Virgin Islands Code provides, “”The Attorney General shall have the following powers and duties . . . (2) to prosecute in the inferior courts all offenses against the laws of the Virgin Islands; (3) to prosecute in the name of the People of the Virgin Islands, offenses against the laws of the Virgin Islands.” The court dismissed defendant’s argument about need for consent. People of the Virgin Islands v. Francis, 2021 VI SUPER 21 (Feb. 24, 2021, V.I.)
In a New York case, the court addressed the authority of an assistant attorney general who was acting as an assistant district attorney during a criminal prosecution. Defendant challenged the authority of the assistant attorney general to act as prosecutor in the case. The court noted that although the New York attorney general’s criminal authority is strictly limited, “a district attorney may enlist the help of an assistant attorney general in prosecuting a case by appointing him or her as an assistant district attorney, provided that such appointment is made in accordance with the dictates of County Law § 702 and that the district attorney retains “ultimate prosecutorial authority” over the matter.” In this case, all proper steps were taken, including the valid appointment of the assistant attorney general as assistant district attorney, the taking of the appropriate oath by the assistant attorney general, and the continuing control and direction of the district attorney. Defendant’s argument was dismissed. People v. Mazzeo, 2021 N.Y. App. Div. LEXIS 1235 (N.Y. App. Div. Feb. 25, 2021).
The authority of the Connecticut attorney general over charities was recently reaffirmed by the state’s supreme court. In 2013, Rettich bequeathed his residual estate to Our Lady of Mercy (OLM), a Catholic school in Madison, Connecticut, “or its successor, for its general uses and purposes.” In 2018, the Catholic archdiocese announced the closing of the school and establishment of a new school serving several parishes, including the one served by OLM. The plaintiffs, parents of students attending the defunct OLM formed a non-profit corporation to establish a new Catholic school in Madison.
The plaintiffs sued the Archdiocese, arguing that the residuary clause in Rettich’s will created a constructive trust for the benefit of the plaintiffs and that the defendant had a duty to convey the funds to the nonprofit corporation they had formed.
The trial court held that the bequest was a testamentary gift, not a constructive trust, and the exclusive power to enforce that type of gift lies with the attorney general pursuant to Connecticut common and statutory law. The trial court also held that a special interest exception to the exclusive power of the attorney general has been recognized and applied only in the context of charitable trusts, not gifts. The plaintiffs appealed.
The court concluded that Rettich’s bequest was a gift, rather than a trust, and that only the attorney general would have standing to challenge the use of the gift by the archdiocese. The court read the will to provide for a straightforward gift to OLM, rather than a trust. The court noted, “Connecticut is among the majority of jurisdictions that have codified this common-law rule and has entrusted the attorney general with the responsibility and duty to represent the public interest in the protection of any gifts, legacies or devises intended for public or charitable purposes.” (citing Conn. Gen. Stat. §3-125.) The court concluded, “The plaintiffs have provided no compelling argument as to why, under the present circumstances, we should abandon the well-established and legislatively adopted general rule that the attorney general has the exclusive power to enforce Rettich’s testamentary gift to the extent it is necessary to vindicate the interests of the plaintiffs and of the general public.” Derblom v. Archdiocese of Hartford, 203 Conn. App. 197 (Ct. App. March 9, 2021).
The broad common law powers of the Illinois attorney general were reaffirmed in a recent case involving the Illinois Insurance Fraud Protection Act (IFPA). The Act, like the state’s False Clam Act, permits a “relator” to bring an action in the name of the state. However, the IFPA applies to false claims submitted to private insurers, not to the state. After the appellate court allowed the relator, a former employee of the defendant who had not been personally injured by defendant’s actions, to bring a claim under the IFPA, the defendant appealed. The defendant argued that the relator was not an “interested person” within the meaning of the Act because she had not suffered any direct injury and that criminal fraud against private insurance companies constitutes an injury merely to the State’s sovereignty, rather than its purse, and that the State may not assign to private citizens the authority to enforce criminal law.
The Illinois Supreme Court first held that “the defining characteristic of an “interested person” under the Act is the disclosure of material evidence of wrongdoing and involvement in the litigation, not a personal claim, status, or right affected by the fraud.” Turning to the question of authority to bring a claim, the supreme court noted that prior Illinois decisions had held the interest of a qui tam plaintiff in a False Claims Act suit is justified as a “partial assignment of the state’s right to bring suit. . .. However, the government’s standing rests on the ‘injury to its sovereignty based on the violation of its laws,’ as well as the ‘proprietary’ injury suffered in False Claims Act cases.’”
As part of its argument that the relator cannot bring an IFPA claim on behalf of the state, the defendant noted that “interpreting the Act to allow a private citizen without a legal interest to exercise the State’s law-enforcement power is unconstitutional because the attorney general is the sole officer authorized to represent the people in any litigation in which the People of the State are the real party in interest.” The court reiterated the broad sweep of the powers of the attorney general of Illinois, stating,
As the chief legal officer of the state, the attorney general’s authority is derived from the Illinois Constitution. The duties of the attorney general are prescribed by law and include those powers traditionally held at common law. Only the attorney general is empowered to represent the State in litigation where the State is the real party in interest. The legislature may add to the powers of the attorney general, but it cannot reduce the attorney general’s common-law authority in directing the legal affairs of the State. [citations omitted]
The court found that the attorney general retains enough control over the litigation to make the statute constitutional. For example, the qui tam plaintiff must serve the attorney general with a copy of the complaint and a written disclosure of the material evidence and information, and the attorney general has 60 days, while the complaint remains under seal, to decide whether to intervene. If the attorney general intervenes, he or she assumes control over the litigation, and may dismiss or settle the case at any time, without regard to the qui tam plaintiff. If the attorney general allows the qui tam plaintiff to proceed with the action, the attorney general may still intervene at any time and dismiss or settle the case. These powers ensure that the IFPA does not usurp the attorney general’s authority, and the court declined to dismiss the case. State ex rei. Leibowitz v. Family Vision Care, LLC, 2020 IL 124754 (Ill. Nov. 19, 2020).