Emily Myers, NAAG Antitrust and Powers and Duties Chief Counsel
Separation of Powers
The Arizona legislature enacted a statute under which “[a]t the request of one or more members of the legislature, the attorney general shall investigate any ordinance, regulation, order or other official action adopted or taken by the governing body of a county, city or town that the member alleges violates state law or the Constitution of Arizona.” Thus, under the statute, a single legislator, or group of legislators, may ask the attorney general to investigate whether a municipal ordinance violated state law. Once the attorney general investigates, and determines there is a violation the municipality is notified and given an opportunity to correct the violation. If no correction is made, the attorney general “shall file a special action in [the] supreme court to resolve the issue.” The city of Tucson had an ordinance regarding the destruction of impounded firearms which conflicted with a state law prioritizing resale of those firearms, if possible. A legislator asked the attorney general to investigate, which he did, and, when the Tucson City Council declined to change its ordinance, the attorney general filed suit, as prescribed by the statute. The city challenged the suit as a violation of the separation of powers, among other grounds, alleging that the required actions by the attorney general unconstitutionally infringe on both executive and judicial powers. The Arizona Supreme Court held that there was no separation of powers issue in the statutory scheme. The court applied a four-part test to analyze the separation of powers claim: (1) the essential nature of the power being exercised; (2) the legislature’s degree of control in the exercise of that power; (3) the legislature’s objective; and (4) the practical consequences of the action. In examining the first factor, the court stated that “interpreting the law . . . and enforcing legislative conditions on appropriations are essentially executive functions.” With regard to the second factor, the court noted that the legislature is not involved other than to request that the attorney general undertake an investigation. According to the court, the attorney general retains his discretion to apply independent judgment when determining whether a municipal action violates state law. Turning to the remaining factors, the court held that the statute’s purpose was not to usurp executive or judicial authority, but to encourage compliance with state law. The court distinguished this statutory scheme from “a legislative attempt to direct the exercise of prosecutorial discretion in a criminal case or civil enforcement action.” The attorney general’s determination that the municipal ordinance violates state law and the filing of a special action in the Supreme Court, as required by the statute, does not infringe on judicial power. “Rather, such determinations are legal opinions, which the Attorney General routinely and permissibly issues in other contexts.” The judiciary is the final arbiter of the issue. The court then held that the ordinance did, in fact, violate state law. State ex rel. Brnovich v. City of Tucson, 771 Ariz. Adv. Rep. 17 (Ariz. Aug. 17, 2017)
Attorney General’s Prosecutorial Discretion Affirmed
An inmate in an Illinois prison alleged that corrections employees had stolen a number of items from him. He filed a prison grievance and requested several times that the attorney general investigate the alleged thefts. The attorney general declined, and the inmate filed a mandamus action to compel the attorney general to investigate. In the course of upholding the trial court’s dismissal of the mandamus action, the appellate court discussed the attorney general’s discretion in performing her duties. The Illinois Attorney General Act states that the duties of the attorney general, among others, “shall be” to investigate and prosecute alleged violations of the statutes which the attorney general has a duty to enforce. The inmate claimed that this statute made the attorney general’s investigation and prosecution of his case a ministerial, mandatory duty. The court described the three elements of the test for mandamus relief: 1) plaintiff has clear right to the relief requested; 2) public officer has a clear duty to act; 3) public officer has clear authority to comply with a court order granting mandamus relief. In this case, the plaintiff failed to plead sufficient facts to satisfy the first part of the test because the Illinois attorney general does not represent private individuals, but rather the interests of all of the people of the state as a whole. He also failed to plead sufficient facts to satisfy the second part of the test because Illinois case law “establishes that the Attorney General’s duty to investigate and prosecute criminal offenses is discretionary in nature, regardless of the word “shall” in the Attorney General Act.” The court stated, “Rather than being a mandatory obligation, such matters belong to the discretion of the Attorney General to determine which complaints, out of the volume of complaints that the Attorney General receives each year, should be investigated and/or prosecuted.” LaBoy v. Madigan, 2017 IL App (3d) 150580-U (Ill. App. June 30, 2017).
Attorney General Disqualification
Plaintiff, the mother of a child profoundly injured by medical malpractice, challenged the actions of several trial judges in Mississippi Chancery Court in connection with the conservatorship and trusteeship of her daughter. One of the judges was found guilty of obstruction of justice and served time in prison; the other was reprimanded, fined, and suspended from the bench. The plaintiff then sought damages from, among other parties, the judges, alleging misappropriation of funds, malpractice, civil rights violations, breach of contract, breach of fiduciary duties, and negligence. The plaintiff also sought to disqualify the attorney general from defending the judges, arguing that, after the lawsuit had been filed, the attorney general should have referred the complaint to the proper state agency and opened a criminal investigation. She also argued that, because the attorney general works closely with the U.S. Attorney’s Office and because that office was involved in the prosecution of the judge, there was a disqualifying conflict of interest. The trial court dismissed her claims on grounds that the judges were immune from suit and declined to disqualify the attorney general because she had no reasonable expectation of representation by the attorney general. She appealed to the state Supreme Court. The appellate court held that the representation of the judges was within the attorney general’s authority under Mississippi law. The court also held that prosecution of cases is solely in the name of the state, and the plaintiff could not, therefore, be a client of the attorney general. Because there was no conflict of interest, the attorney general was not disqualified. Newsome v. Shoemake, 2017 Miss. LEXIS 367 (Miss. Sept. 7, 2017).
Bar Admission for Assistant Attorneys General
Nevada Bar rules require that attorneys practicing in Nevada be admitted to the state bar. An exception is made for attorneys employed in the Nevada Attorney General’s Office. The applicable rule provides, “an attorney who is admitted to practice law in any other jurisdiction, and who becomes employed by the Nevada Attorney General, may be certified to practice before all courts of this state subject to the conditions of this rule . . . .“ Another section of the rule states, “In no event shall certification to practice under this rule remain in effect longer than 2 years.” Several lawyers employed by the Nevada attorney general were told by Nevada Bar employees that they could renew the limited practice certification indefinitely. The state bar moved to revoke their licenses, and the attorneys sought a writ of mandamus from the state Supreme Court, which was granted. The Nevada Supreme Court found that they had reasonably relied on the representations by the state bar employee and reinstated their licenses, directing them to take the state bar examination at the next opportunity, which at Journal press time was done. In dissent, three justices argued that the attorneys did not “reasonably” rely on the bar employee’s representation, and the relief should not be granted. The dissenters characterized the information provided by the state bar employee as absurd, noting “this interpretation could result in the absurd situation in which an attorney could practice law in this state indefinitely–perhaps 5, 10, or 20 years or more–without being fully admitted to the bar, as long as he or she remained employed at the Attorney General’s Office and annually renewed his or her certification of limited practice.” The dissent described the limited practice exception for the attorney general’s office as allowing “the attorney general’s office to recruit attorneys from other states without first requiring that those attorneys gain full admittance to the Nevada bar.” Because the attorneys practicing under this rule must do so under the supervision of an active member of the bar, and continued renewal would require an attorney to have that supervision in perpetuity, the dissent did not believe the petitioners’ reliance on the bar employee’s interpretation was reasonable. Office of the Attorney General v. State Bar of Nevada, 2017 Nev. Unpub. LEXIS 369 (Nev. May 17, 2017)
Attorney General May Be Sued for First Amendment Violations
Plaintiff law firm sued the Ohio attorney general, as well as employees of the Industrial Commission of Ohio, stating a First Amendment challenge to an Ohio statute on the grounds that it limits the law firm’s practice of advertising to potential workers’ compensation clients through the mail. The attorney general had issued grand jury subpoenas to entities working with the plaintiff law firm, although not to the plaintiff itself. Plaintiff sought a declaratory judgment that O.R.C. § 4123.88, which prohibits solicitation of workers’ compensation claimants for representation, was facially invalid. After finding that the plaintiffs had standing to sue and had stated a First Amendment claim, the court addressed the attorney general’s argument that he was not a proper party to the case. The attorney general argued that Ohio’s Declaratory Judgment Act requires notice to, but not participation of, the attorney general in this case. The court held, While this provision does not require the Attorney General’s participation in any lawsuit alleging that a statute is alleged to be unconstitutional, it also does not prohibit inclusion of the Attorney General in the case. Indeed, the Attorney General may properly be named a party to the lawsuit if he has “some connection with the enforcement of the act” and he “threaten[s] and [is] about to commence proceedings” to enforce it. The court held that the attorney general had a sufficient connection to this case because he has an obligation to enforce the statute at issue, as described in the statute: “Upon the request of the industrial commission or the administrator of workers’ compensation, the attorney general . . . shall institute and prosecute the necessary actions or proceedings for the enforcement of this chapter.” Although the attorney general is not the official responsible for the rules of the Industrial Commission, he is still responsible for enforcing them. The attorney general also argued that he had not issued subpoenas to the plaintiff, but the court held “Grand Jury subpoenas may be and are issued by the Attorney General to witnesses in addition to, and in advance of, subpoenas issued to targets of investigations.” Because “a plaintiff need not wait until a prosecutor initiates adverse action to have standing to sue,” the court held that plaintiff’s claims should not be dismissed. Bevan & Associates v. DeWine, 2017 U.S. Dist. Lexis 92039 (S.D. Ohio, June 15, 2017).