Arkansas—In a case addressing proper service of process on a state agency, an Arkansas court affirmed the independence of the Arkansas attorney general. The defendant had sent the attorney general a copy of a complaint naming the head of the state Department of Community Corrections and the head of the state Parole Board as defendants. The defendant argued that this was sufficient service of process. The court held, “The attorney general’s office is a separate constitutional office, not merely an arm of the executive branch. [citations omitted] The attorney general’s office represents the agencies and departments of the State only when its services are needed and the request for services has been certified by the agency to the attorney general.” Middlebrooks v. Graves, 2022 Ark. 107 (Ark. 2022).
Colorado—A variety of plaintiffs, including a donor to and former trustee of the University of Colorado Foundation, graduates, and a current student at the University, challenged the Foundation’s management of its investments. The Colorado appellate court held that only the attorney general or a person with a special interest in the foundation had standing to sue for mismanagement. The court held, “the beneficiary is the unspecified, indefinite general public to whom the social and economic advantages of the trust accrue. And, as a consequence, the responsibility for public supervision of charitable trusts traditionally has fallen to the state’s Attorney General.” This is the case under both common law and the state’s Uniform Prudent Management of Instin1tional Funds Act. Herbst v. Univ. of Colo. Found., 2022 COA 38 (Colo. Ct. App. 2022).
Massachusetts—A recent case involving a tortious interference with contract claim against the Massachusetts Gaming Commission cited the Commission’s relationship with the attorney general as a factor demonstrating that it was a public employer and not subject to tort liability. The Commission’s lack of independence from the state was indicated by the fact that “is not generally empowered to direct its own litigation decisions. Instead, the Attorney General “shall appear” for the commission “in all suits and other civil proceedings … in which the official acts and doings of [the commission] are called in question.” G. L. c. 12, § 3. Where a commission must be represented by the Attorney General in litigation under G. L. c. 12, § 3, we have recognized that “something other than that traditional attorney-client relationship exists,” because it is not the commission that directs key decisions; rather, “the Attorney General . . . has control over the conduct of litigation.” FBT Everett Realty, LLC v. Massachusetts Gaming Commission, 489 Mass. 702 (Mass. 2022).
Ohio—Ohio’s Constitution (Art. 1, Sec. 21(A)) provides that “[n]o federal, state, or local law or rule shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.” Several plaintiffs, objecting to various public health orders issued in connection with Ohio’s pandemic response, sought a writ of mandamus to compel the Ohio Senate to defend Article I, Section 21 “against any passage of legislation which may possibly conflate, obfuscate or otherwise subvert the clarity of rights conveyed by” Article I, Section 21.” Plaintiffs also asked for “a writ compelling the Senate respondents to order the Ohio Attorney General to halt the operation of any public or private entity that is participating in the alleged constitutional violations within the state of Ohio.
The court concluded, “[W]e may not order the General Assembly to compel the attorney general to perform his duties in a certain fashion. The attorney general is an independently elected executive-branch official.” If the General Assembly wanted to impose limits on the attorney general, it would have to enact legislation to that effect, “and the separation-of-powers doctrine precludes us from telling the General Assembly what legislation it should enact.” State ex rel. Johnson v. Ohio State Senate 2022 Ohio 1912 (Ohio 2022).
Tennessee—Universal Life Church (ULC) ministers can become ministers over he internet, free of charge in a short period of time. They are not permitted to perform marriages under Tennessee law because their ordination did not occur “by a considered, deliberate, and responsible act.” ULC and some of its ministers sued several Tennessee officials, including the attorney general, seeking declaratory and injunctive relief allowing them to perform marriages. In the course of determining whether the attorney general was a proper defendant, the Sixth Circuit analyzed the criminal enforcement authority of the Tennessee attorney general.
The state officials each argued that the plaintiffs did not have standing to sue, and if they did have standing, each official was protected by sovereign immunity. The court found that with respect to the attorney general, the plaintiffs did not have standing to sue. According to the court, the plaintiffs must show that the attorney general “can and may take some enforcement action against them.” But the attorney general is not authorized to initiate criminal prosecutions, so “there is no imminent prosecution that a federal court could coerce the Attorney General to refrain from undertaking.” Although Tennessee law provides that the attorney general is a proper defendant in a suit challenging the constitutionality of a statute, that does not mean that he can prosecute the plaintiffs in this case. Nor can the attorney general command the local district attorneys to prosecute. The attorney general has no power to “direct or command he district attorneys general to undertake prosecutions.” Universal Life Church Monastery Storehouse v. Nabors, No. 21-5048 (6th Cir. May 27, 2022).
