Emily Myers, NAAG Powers and Duties Chief Counsel and NAGTRI Program Counsel
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’s Relationship with Governor and Legislature
The Kentucky attorney general sent an unsolicited letter to state legislators, advising them of his views on the constitutional issues raised by a statute known as SB 1. The Democratic members of the legislature also sent out a tweet with a picture of the attorney general and Democratic legislators, with a caption that references a discussion of “legal options.” The governor eventually signed a successor bill into law. The attorney general filed suit against the governor on the grounds, among other things, that the law was unconstitutional. The governor moved to disqualify the attorney general, arguing that the communications with the legislature created an attorney-client relationship and allowing the attorney general to sue creates a conflict of interest under the Kentucky Rules of Professional Conduct.
The court held that “controlling law on this point emphatically provides that the Attorney General’s true clients, to whom he owes his legal and fiduciary duty of loyalty, are the citizens of Kentucky and not any officeholder, department or agency.” Moreover, “[i]t is abundantly clear from the record in this case and others, that the Governor did not seek or accept the legal advice of the Attorney General, nor did he agree with or follow the advice the Attorney General offered to the legislature. For these reasons, the Attorney General could not possibly have a conflict of interest.”
The court rejected the governor’s argument that the attorney general is “chief law officer” for the state and has a “duty of loyalty” to the legislature because he has a statutory obligation to provide state agencies and officers with legal advice. Noting that the governor did not explain how any duty of loyalty to the legislature would extend to him, the court stated, “Governor Bevin, as the person who now occupies the office of Governor, is not the state.” The attorney general’s duties are to the people, as the sovereign. In that capacity, the attorney general has not only an obligation, but also a duty to bring suit “when he believes the public’s legal or constitutional interests are under threat. . . . As such, the Attorney General’s attorney-client relationship is with the citizens of Kentucky and it is to the public, not any office or officeholder, that the duty of loyalty is owed.”
The court concluded:
The Court recognizes there are many important legal issues that can and should be contested in this action. The legitimacy of the Attorney General’s right to challenge the legislation at issue, and to contest the Governor’s legal position, is not one such legal issue. Case law is well established that the Attorney General has both the right and the duty to challenge statutes that he believes are unconstitutional. . . . It would perversely twist the logic and purpose of the Rules of Professional Conduct to hold that the Attorney General is disqualified from challenging a statute because he rendered a legal opinion prior to adoption of the law that counseled against the actions adopted by the legislature. Commonwealth ex rel. Beshear v. Bevin, No. 18-CI-379 (Franklin Cir. Ct. May 1, 2018.
Attorney General Cannot Be Removed Except By Impeachment
Missouri statutes provide that “[t]he attorney general shall reside at the seat of government.” The Missouri attorney general maintained a residence in Jefferson City, but also maintained his original residence, outside the city, where he continued to vote. A relator filed suit requesting a writ of mandamus requiring the attorney general to reside in Jefferson City or resign from office. The attorney general argued, among other things, that a challenge to the validity of the attorney general’s service in office cannot be made through a mandamus action by a private relator. The court agreed with the attorney general and denied the writ.
Past Missouri decisions have held that “the proper method for challenging the constitutional validity of an officer’s service is through a quo warranto action,” which can only be initiated by a government attorney, who has complete discretion as to whether to file the case. The relator thus cannot proceed unless the attorney general or the local prosecutor participates in the case.
The court further held that, even if a government attorney participated in the proceeding, the Missouri Constitution would bar the removal of the attorney general by this means. The sole method provided in the state constitution for removal of statewide elected officers is impeachment. The court concluded “the Court has no constitutional authority to order the Attorney General to resign from office, and . . . the private relator has no authority to seek this extraordinary relief under any circumstances . . .” Mueller v. Hawley, No. 17AC-CC00577 (Mo. Cir. Ct. Cole Cty. June 12, 2018).
Attorney General’s Parens Patriae Suit Not Subject to Removal Under CAFA
The New Hampshire attorney general filed suit against Purdue Pharma, the manufacturer of opioid pain medications. The complaint alleged that Purdue’s false and misleading claims injured the state, its municipalities, and its consumers in violation of the state’s consumer protection and Medicaid fraud statutes. The complaint sought damages for its own injuries and injunctive relief, civil penalties, restitution, abatement, and attorneys’ fees on behalf of itself and its municipalities and citizens. Purdue Pharma removed the case pursuant to the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d)(1)(B), and the state sought remand to state court.
CAFA gives federal courts subject matter jurisdiction over certain class actions that would not otherwise meet diversity jurisdiction requirements. Specifically, CAFA provides that a CAFA class action is an action filed under Federal Rule of Civil Procedure 23 or under a similar state statute or rule authorizing an action to be brought by one or more representative persons as a class action. The state argued that its action was brought to vindicate its own proprietary and quasi-sovereign interests, rather than those of individual consumers. The court held that a parens patriae action is different from a class action because it need not satisfy the required numerosity, commonality, typicality, and adequacy factors of a class action and the court does not have the power to closely supervise the action, including appointing counsel or preventing the state from settling its claims.
The court explained the unique nature of a parens patriae action:
More fundamentally, a parens patriae action is unlike a class action because a state’s power to sue on behalf of others derives from its sovereign power to protect its citizens rather than its status as a member of a class of injured plaintiffs. As the Supreme Court has long recognized, “[t]his prerogative of parens patriae is inherent in the supreme power of every State, whether that power is lodged in a royal person or the legislature and is a most beneficent function often necessary to be exercised in the interests of humanity, and for the protection of those who cannot protect themselves.” Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600 (1982).
Purdue also argued that the case was not a traditional parens patriae action because the state sought restitution on behalf of specific individuals rather than seeking to promote the health and welfare of its citizens overall. Following precedent in other courts, the district court held, “[a] state’s action on behalf of its citizens does not become a class action merely because it seeks injunctive relief that benefits individual class members.“ The court concluded that Purdue’s argument “fails to sufficiently account for both the State’s sovereign power to sue on behalf of its citizens and its governmental duty to protect the health and welfare of its citizens.” Noting that the opioid crisis costs the lives of the state’s citizens, floods the state’s prisons, and demands vast commitments by the state’s law enforcement and first responders, the court stated, “[w]hen the State sues to protect its citizens from such ongoing injuries, it is not acting merely as a member of a class of injured persons seeking to obtain compensation on behalf of others. It is acting in a sovereign capacity to protect its citizens. CAFA does not deprive states of the power to litigate such claims in their own courts.” New Hampshire v. Purdue Pharma, 2018 U.S. Dist. LEXIS 3492 (D.N.H. Jan. 9, 2018).
Northern Mariana Islands
Control of Litigation
The Northern Mariana Islands Supreme Court provided a thorough analysis of the authority and responsibility of the attorney general vis-à-vis the governor in a recent decision.
The Northern Mariana Islands (NMI) governor requested that the attorney general appeal several decisions, and the attorney general declined to do so. The governor also requested that the attorney general file a cert petition in the U.S. Supreme Court on an election law case, and the attorney general declined to do so. The governor, without the consent of the attorney general, directed private counsel to file a cert petition, to which the attorney general objected. The governor and attorney general jointly petitioned the commonwealth’s Supreme Court to resolve two questions: “whether the authority to appeal cases resides with the attorney general; and whether the governor or government agencies may hire an outside counsel to prosecute the appeal without the grant of authority from the attorney general.”
The Supreme Court first looked at the authorizing language in the NMI constitution for both the governor and the attorney general. Because the plain language did not resolve the questions, the court turned to the legislative history of the provisions. In particular, the court reviewed House Legislative Initiative 17-2, passed in 2012, which amended the constitution to provide for election of the attorney general. The court held that this provision was intended to “create an independent attorney general’s office, free of any political influence or interference.”
Other than changing the manner of selection of the attorney general, the provision retained the same language as to the attorney general’s responsibilities. The court therefore reviewed the “Analysis of the Constitution of the Commonwealth of the Northern Mariana Islands (Analysis),” a memorandum approved by the Constitutional Convention following the adoption of the constitution in 1976 that provides an explanation of each section in the Commonwealth Constitution and summarizes the intent of the convention in approving each section.”
Citing Section 1 of the Analysis, the court found “the attorney general has discretion in prosecuting both criminal and civil actions and may decline to prosecute appeals when a court renders an adverse judgment.” Because Section 1 of the Analysis describes the governor’s executive power, the language about the attorney general’s power acts as a limit on the governor’s power, rather than on the attorney general’s power. The Analysis of Section 1 also states, “This section does prevent executive departments from engaging outside counsel to represent the department in any legal matter without a grant of authority from the attorney general.” Based on the Analysis, the court held, “the attorney general may decline to appeal an adverse judgment despite the wishes of the governor or a client government agency, and the governor or client agency may not hire outside counsel to prosecute an appeal without a grant of authority from the attorney general.”
The court also held “nothing in the NMI Constitution suggests the governor has the power to unilaterally override the attorney general’s authority, discretion, or representation.” However, the attorney general does not have unfettered discretion. “[T]he attorney general’s advice must be prompt, competent, and informed . . . In particular, the attorney general must not engage in delay tactics or gamesmanship when advising the governor or other executive departments regarding appeals.” The court also held that the attorney general has an affirmative duty to defend that Commonwealth, its actors, and the validity of its statutes. This duty to defend is “paramount,” so “the attorney general must, therefore, balance his duty to defend with clear controlling precedent and lack of good-faith argument. It is only when the attorney general has fulfilled his constitutional duty to defend and the court renders an adverse judgment against the Commonwealth, he or she can then exercise discretion in prosecuting the appeal.” The attorney general is subject to checks and balances by the Public Auditor, the judiciary, and the legislature (through impeachment).
The Supreme Court declined to determine whether the attorney general has common law powers because “the text of the NMI Constitution—not common law powers—bestows the attorney general the power and responsibility to prosecute cases and appeals and to represent the Commonwealth.” Chief Justice Castro, concurring, agreed that the attorney general has absolute discretion in the criminal context, but argued that the attorney general should defer to the governor where the issue threatens the constitution or treaties of the Northern Mariana Islands. Torres v. Manibusan, No. 2017-SCC-0030-CQU (N.Mar.I. June 26, 2018).
Qualified Immunity of Attorney General and AGO Employees
Five plaintiffs filed section 1983 claims against Kathleen Kane, former Pennsylvania attorney general and an investigator in her office, alleging defamation and retaliation against the plaintiffs for engaging in First Amendment-protected speech. Plaintiffs were not employed by Kane or under her supervision. Among other actions, plaintiffs alleged that Kane defamed them by implying they had racist motives in investigating certain members of the state legislature. They also alleged that two members of Kane’s staff threatened to reveal e-mails with pornographic content that had been sent to the plaintiffs through their state government accounts unless plaintiffs stopped criticizing Kane. Plaintiffs also alleged that members of Kane’s staff physically threatened plaintiffs in connection with their testimony before a grand jury. The district court dismissed the claims, but the Third Circuit reversed, holding that plaintiffs had made colorable claims that should be subject to full consideration by the district court. The Third Circuit remanded the case for further fact-finding on, among other things, defendants’ claims of qualified immunity.
Qualified immunity is an affirmative defense that protects all executive branch officers performing executive functions from liability for money damages “unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” The court held that defamation claims, involving as they do a claim of harm to reputation, rather than liberty or property interests, do not establish a federal constitutional claim and so cannot give rise to section 1983 claims. Several defendants alleged that they were compelled to resign their positions as a member of the Pennsylvania Parole Board and as an assistant district attorney in Lancaster County. The court found that the attorney general had no authority over either the Parole Board or the district attorney, and therefore the plaintiffs’ claims do not involve a clearly established constitutional right that can form the basis for a section 1983 action.
The court concluded that the threats to reveal the private e-mails unless plaintiffs ceased criticizing Kane were coercive and were not protected by Kane’s First Amendment rights. Similarly, threats against plaintiffs if they revealed Kane’s wrongdoing to the grand jury were not protected by qualified immunity. The court held that “[a]ny reasonable public official would know that it is clearly established that it is a constitutional violation for a public official to threaten physical or other harm to an individual who is going to testify before the grand jury.” The court concluded by dismissing three of the six claims on grounds of qualified immunity, and allowing the other claims to proceed to trial. Noonan v. Kane, No. 15-6082 (E.D. Pa. Mar. 29, 2018).
Attorney General’s Power to Control Litigation
The Rhode Island Supreme Court affirmed the attorney general’s power to control state litigation when it held that the attorney general is vested with the “nondelegable, nontransferable legal duty to determine whether the state should provide a defense and indemnification in a civil action brought against a state employee.”
The case involved a traffic stop and subsequent arrest of Lionel Monsanto by State Trooper James Donnelly-Taylor. Trooper Taylor allegedly assaulted Monsanto multiple times after taking him into custody, and there was a video recording of the assaults. A grand jury indicted Taylor, who subsequently entered a nolo plea and was sentenced to 25 hours of community service, which he completed. Monsanto filed a federal suit against the state and Taylor, both individually and in his official capacity, alleging civil rights violations under 42 U.S.C. § 1983 as well as a number of other federal and state claims. Taylor requested representation by the Attorney General’s Office, pursuant to the terms of the Collective Bargaining Agreement (CBA) between the police union and the state. The attorney general declined to represent Taylor because his conduct fell outside the scope of his employment and was willful misconduct (citing the exceptions in R.I. Gen. Laws §9-31-9 to the attorney general’s duty to represent state employees).
The Rhode Island Troopers Association (RITA) filed a grievance with the State Police, which was denied, and RITA then filed a demand for arbitration, arguing that under the terms of the CBA, the state must fund Taylor’s legal defense and indemnify him against damages. The state then filed a complaint for declaratory judgment that the attorney general is the only party who can determine when and whether, in an action against a state employee, to provide a defense and/or indemnification. The trial court agreed with the attorney general and issued a declaratory judgment that the grievance was not arbitrable under the CBA. The court held “The Governmental Tort Liability Act tasks the Attorney General with the non-delegable, non-transferable, sole legal duty to determine when and whether, in an action filed against a state employee, to provide a defense and/or indemnification” and “Neither the Governor nor any Department head can bargain away, contract, or otherwise agree to alter the Attorney General’s sole discretion and responsibility as set forth in the Government[al] Tort Liability Act.”
The Supreme Court held that the trial court’s ruling was too broad, and limited its own ruling to the questions of whether the attorney general’s refusal to provide a defense was arbitrable under the CBA and whether the attorney general has the sole authority to determine whether a state employee is entitled to legal representation. Rhode Island case law establishes that applicable state law is superior to contractual provisions or employment practices. In this case, the court held that whether an employee was acting within the scope of his employment is a question that is committed by statute to the attorney general and is, therefore, not subject to arbitration under the CBA. The Supreme Court affirmed the trial court’s permanent injunction blocking the proceedings under the CBA.
Turning to the question of the attorney general’s authority, the Supreme Court described past cases upholding that authority of the attorney general to carry out the functions of his office, citing both the statutory and common law authority of the office. In this case, the Supreme Court found that the express statutory language of the Governmental Tort Liability Act permitted the attorney general to decline to defend Trooper Taylor if his conduct was outside the scope of his employment or was willful misconduct. The attorney general had based his decision on Trooper Taylor’s nolo plea and indictment by a grand jury as well as on the video recording of his assault on Monsanto. This information was ample for the attorney general to determine that Trooper Taylor’s conduct fell outside the scope of his employment and was willful. The Supreme Court held, however, that the attorney general’s discretionary decision in this context is reviewable by a court. State of Rhode Island, ex rel. Kilmartin v. Rhode Island Troopers Ass’n, No. 2017-330-Appeal (R.I. June 27, 2018).
Younger Abstention Appropriate in Consumer Protection Case
TVI is a Washington-based for-profit company that operates Value Village stores and works with non-profit organizations to collect used goods from donors and pay charity partners for these goods. The Washington Attorney General’s Office investigated TVI and sought to negotiate a settlement of claims that TVI does not disclose to its customers the portion of sales prices paid to its charity partners. TVI brought a Section 1983 action in federal court, alleging that the attorney general violated its First and Fourteenth Amendment rights by dictating its contractual relationships and mandating disclosure of contractual terms. Nine days later, the attorney general filed suit against TVI in state court asserting claims under the state’s consumer protection and charitable solicitation statutes. The attorney general moved to dismiss the federal suit on grounds of Younger abstention, which provides that “principles of equity, comity, and federalism limit the exercise of federal jurisdiction over matters being litigated in an ongoing state proceeding.” Younger abstention is limited to 1) parallel, pending state criminal proceedings; 2) state civil proceedings akin to criminal prosecutions; and 3) state civil proceedings that implicate a state’s interest in enforcing the orders and judgments of its courts.
The Ninth Circuit has held that the proceedings must be a) ongoing; b) quasi-criminal enforcement actions or involving a state’s interest in enforcing the orders and judgments of its courts; 3) implicate an important state interest; and 4) allow litigants to raise federal challenges. The district court found that the case satisfied the first and second prongs of the test. The court held that there was an important state interest in this case, given the large consumer public and the nature of the attorney general’s consumer protection claims. The court also held that TVI could proceed with its First Amendment challenges to the attorney general’s suit in state court.
Because all the requirements for abstention were satisfied, the court turned to the question of whether the state proceeding “is characterized by bias, bad faith, harassment” or some other action that would make abstention inappropriate. One way to show bad faith is to demonstrate that the attorney general brought the state case without a reasonable expectation of success. TVI argued that the attorney general’s motive in negotiating with TVI was harassment, but the court agreed with the attorney general that “that “[t]he parties nearly settled,” and that it cannot be bad faith to engage in settlement negotiations “that involve a potential voluntary, knowing, and intelligent waiver of constitutional rights by another.” The court dismissed TVI’s action with prejudice. TVI, Inc. v. Ferguson No. C17-1845 (W.D. Wash. April 3, 2018).
Control of Litigation
Wisconsin’s Regulations from the Executive in Need of Scrutiny (REINS) Act requires an agency to submit a proposed rule to the state Department of Administration, which makes a determination as to the agency’s authority to issue the rule. The governor may then approve or reject the agency rule. The Wisconsin superintendent of public instruction, an elected official, took the position that the REINS Act did not apply to him or his department.
The attorney general brought an action for declaratory judgment that the superintendent must comply with the REINS Act. When the attorney general filed the action, the attorney general notified the Department of Public Instruction (DPI) that it would assert that the REINS Act does apply, a position contrary to that of the superintendent and DPI. Attorneys from DPI entered an appearance in the case. The attorney general then filed a notice of substitution of counsel and informed DPI that the governor had requested that the attorney general represent the agency. The superintendent filed a motion to deny substitution of counsel and to disqualify the attorney general from representing the agency and the attorney general filed a cross motion to strike the appearance by the DPI attorneys.
The Supreme Court first described its supervisory authority over the practice of law in Wisconsin and concluded, “Our superintending authority over the courts and over the practice of law gives this court the power to resolve disputes regarding representation.” The Supreme Court then held that the superintendent and DPI were entitled to counsel of their choice, and were not required to be represented by the attorney general. The court stated that the attorney general’s argument would mean that the agency would be required to use an attorney they have discharged, who is taking a position with which they do not agree. The court noted that this could have ethical implications for attorneys in the Attorney General’s Office, since ethics rules require an attorney to withdraw if the lawyer is discharged.
The court also described the attorney general’s position as giving him “breathtaking power” as a gatekeeper for legal positions taken by constitutional officers, including the governor and justices of the Supreme Court. “DOJ’s position would not allow a constitutional officer to take a litigation position contrary to the position of the attorney general. We decline to adopt this view.” Finally, the court noted that the case is about the scope of the superintendent’s constitutional power. If the attorney general will not argue the superintendent’s position, the situation “would essentially leave the attorney general, and not this court, to decide the scope of the superintendent’s constitutional authority.” Koschkee v. Evers, 2018 WI 82 (Wis. June 27, 2018).