Emily Myers, Antitrust and Powers and Duties Chief Counsel, National Association of Attorneys General
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.
Supreme Court Affirms Primacy of Virginia Attorney General Control of State
The Supreme Court decided, in the context of a redistricting case, that only the Virginia attorney general had standing to bring an action on behalf of the state.
In 2011, Virginia redrew its legislative districts for both state and federal elections. Voters in some of the redrawn districts sued two state agencies and four election officials alleging that the districts were racially gerrymandered in violation of the Fourteenth Amendment. The Virginia House of Delegates intervened as defendants and provided the main defense in the lower court proceedings. A three-judge panel held that with respect to most of the districts, the state had acted unconstitutionally. The court enjoined use of the improper districts and gave the legislature four months to adopt a new redistricting plan.
The attorney general of Virginia announced that the state would not pursue an appeal of the decision, because such an appeal “would not be in the best interests of the Commonwealth or its citizens.” The Virginia House of Delegates filed an appeal to the Supreme Court, which the state moved to dismiss for lack of standing.
The House argued 1) that it had standing to represent the state’s interests and 2) that it had standing in its own right. Addressing the first argument, the Court stated, “Authority and responsibility for representing the State’s interests in civil litigation, Virginia law prescribes, rest exclusively with the State’s Attorney General.” The Court stated that Virginia has chosen to speak “as a sovereign entity with a single voice,” like the federal government, where the Attorney General and Solicitor General are the only ones who can litigate in the Supreme Court. The Court also dismissed the House of Delegates’ argument that Virginia courts have allowed the House to intervene. The Court noted that in the case relied on by the House, the House was allowed to intervene as a defendant, and to continue to defend the trial court’s judgment, obviating the need to establish standing. The Court also distinguished its previous decision in Karcher v. May1, on the grounds that in Karcher, the Court did not note any New Jersey statute similar to Virginia’s grant of authority to the attorney general.
The Court stated that even if it assumed that Virginia had authorized the House to represent the State’s interest, the House had not indicated that it was appearing in that capacity. Instead, the House described itself as the legislative body that actually drew the redistricting plan at issue and argued that the other parties, including the state agencies and officials, could not protect its interests.
The House also argued that it had standing in its own right, even if not as the state’s agent. The Court observed that its precedent “lends no support for the notion that one House of a bicameral legislature, resting solely on its role in the legislative process, may appeal on its own behalf a judgment invalidating a state enactment.” Although the House pointed to its role in drawing the redistricting plan, the Court noted that Virginia statutes allocate redistricting authority to the “General Assembly,” of which the House of Delegates is only a part. This fact distinguishes the case from the Court’s 2015 decision in Arizona State Legislature v. Arizona Independent Redistricting Comm’n2, where both houses of the legislature acted together to challenge a referendum eroding their redistricting authority. The Court held, “a single House of a bicameral legislature lacks capacity to assert interests belonging to the legislature as a whole.”
The Court also distinguished this case from Minnesota State Senate v. Beens3, in which a federal district court issued an order that reduced the Minnesota Senate from 67 to 35 members. The Court stated, “Cutting the size of a legislative chamber in half would necessarily alter its day-to-day operations . . . By contrast, although redrawing district lines indeed may affect the membership of the chamber, the House as an institution has no cognizable interest in the identity of its members.” The House is distinguishable from political entities that select their own leadership and candidates because it does not select its own members. “Changes to its membership brought about by the voting public thus inflict no cognizable injury on the House.”
In dissent, Justice Alito did not address the question of whether Virginia law authorizes the House to defend the redistricting plan on behalf of Virginia, but disagreed that the type of harm caused to the House does not confer standing. Virginia House of Delegates v. Bethune-Hill, ___ U.S. ___, 139 S.Ct. 1945(2019).
Attorney General’s Control of Litigation
Montana Law requires the Montana Department of Fish, Wildlife, and Parks (FWP) to obtain approval from the Board of Land Commissioners (the Board) for “land acquisition[s] involving more than 100 acres or $100,000 in value.” After the Board rejected several conservation easements, the governor directed FWP to finalize the easements without Board approval. The governor argued that conservation easements were not land acquisitions and did not require the Board’s approval. The Montana attorney general disagreed and issued an opinion requiring FWP to get the Board’s approval for conservation easements of more than 100 acres or greater than $100,000. Attorney general opinions are binding on state agencies, unless overruled by a court.
The Montana Supreme Court accepted the case under its original jurisdiction. The court first addressed the question of whether the governor and FWP Director had standing to sue. Among other points, the attorney general argued that it is the attorney general’s exclusive prerogative “to control and manage all litigation on behalf of the state.” The court held that the Montana Constitution provides that the attorney general shall “have the duties and powers provided by law,” and that dismissing the case for lack of standing would “effectively immuniz[e] the A.G. Opinion from review.” Bullock v. Fox, 2019 MT 50 (Feb. 28, 2019).
Private Parties Do Not Have Standing to Raise Improper Notification of Attorney General
Chapman, a sex offender, petitioned for release from civil commitment after some years in a treatment center. As required under Massachusetts law, two qualified examiners opined that he was no longer sexually dangerous, and he was scheduled for release. Plaintiffs filed an emergency petition to prevent Chapman’s release, on behalf of themselves and the general public, alleging, among other reasons, that the Attorney General was not properly served with a notice of Chapman’s petition for release. A single judge of the Supreme Judicial Court heard and dismissed plaintiffs’ petition, and plaintiffs appealed.
The Supreme Judicial Court affirmed the single judge’s ruling. With respect to the plaintiff’s claims that the attorney general had not been properly served, the court held,
[I]t is the Commonwealth, and the Commonwealth alone, that has the prerogative and the responsibility to file and prosecute the initial petition for civil commitment as a sexually dangerous person, . . . and to defend every petition for discharge. . . . Private individuals, including the victims of the crimes being prosecuted, have no standing in our system of justice to prosecute criminal cases and no authority to compel district attorneys or the Attorney General to do so. [citations omitted]
The court recognized that victims have some rights to notification under Massachusetts law, but held that their claims that the attorney general did not receive appropriate notice “do not concern the petitioners’ specific rights under the victims’ bill of rights but, instead, assert rights that ‘are not private but in fact are lodged in the Commonwealth.’” In the Matter of Chapman, 482 Mass. 1012 (Mass. 2019).
Attorney General’s Office Entitled to Attorneys’ Fees
The Arkansas attorney general’s office brought a case alleging violations of Arkansas’ consumer protection statutes. The defendant was found guilty of 13 counts, his appeal was denied, and the attorney general’s office petitioned for an award of attorneys’ fees in the amount of approximately $121,000.
The defendant argued, among other things, that the opposing attorneys were paid by the State, so they cannot be awarded attorney’s fees and that the State claimed over 100 violations of Arkansas’ consumer protection statute and defendant was found guilty of only 13, so the state did not predominate. The court held that the plain language of the statute allowed the attorney general to receive attorneys’ fees: the attorney general “shall be entitled to all expenses reasonably incurred in the investigation and prosecution of suits, including, but not limited to, expenses for expert witnesses, to be paid by the defendant when judgment is rendered for the State, and, in addition, shall recover attorney’s fees and costs.” The court also held that the case cited by the defendant for the proposition that the attorney general did not predominate involved a case where all claims were dismissed, which was not the case here. The attorneys’ fee award was affirmed. Pleasant v. State ex rel. McDaniel, 2019 Ark. App. 248 (Ark. App. 2019).
Attorney General Use of Quo Warranto Proceeding
The Ohio Supreme Court addressed the attorney general’s powers and authority in a complicated quo warranto proceeding.
A board of directors was elected by each of two separate factions in a non-profit corporation that governed the religious and philanthropic activities of a mosque. The corporation had raised money for expansion of the mosque, and each board of directors claimed control of the corporation’s bank accounts. Lawsuits among the parties ensued, and the Ohio trial court held that in this situation, there must be an action seeking quo warranto. Quo warranto is a writ requiring the person to whom it is directed to show what authority they have for exercising some right or power. The court of appeals then held that a quo warranto action must be filed by the attorney general, a prosecuting attorney, or a person claiming an individual right to office.
The attorney general filed suit seeking a writ of quo warranto dissolving the corporation and appointing a receiver. The supreme court noted that the attorney general “could have proceeded against one faction or the other seeking to remove—or oust—one of the factions from the corporation.” Instead, the attorney general sought dissolution because the corporation had failed to 1) maintain a record of its members, 2) maintain complete accounting records and 3) hold annual meetings. The attorney general then sought summary judgment, not on the theory in the complaint, but rather that the corporation was unable to access its funds, and that this constituted charitable abuse. The trial court found that the failure by the corporation to maintain a formal membership list and to hold elections led to the schism that prevented the corporation from using its funds. The Ohio Supreme Court found instead that the failure to have elections and keep track of members would not have stopped the factions each attempting to assert control over the corporation’s funds. Appropriate corporate governance would not have led to the bank giving the funds to one faction or the other. The court held
Despite the attorney general’s understandable reluctance to take sides in the dispute, by seeking this remedy of dissolution, he is effectively taking sides. If the Khan/Ball faction is illegitimate, we would be rewarding its improper actions. The only way to resolve this dispute once and for all is for the attorney general to commence a proper quo warranto action to oust one faction or the other.
State ex rel. Yost v. Omar Ibn El Khattab Mosque, Inc. 2019-Ohio-1958 (Ohio May 23, 2019).
Ohio and New York
Failure to Notify AG of Constitutional Challenge Does Not Require Dismissal of Claims
Courts in Ohio and New York declined to dismiss constitutional claims even though plaintiffs had failed to notify the state attorney general of those claims in the manner specified by state law.
In City of Cincinnati v. Fourth National Realty, 2019-Ohio-1868 (Oh. Ct. App. May 15, 2019), the city of Cincinnati filed an action for injunctive relief against a building owner for violations of the zoning code. The building owner counterclaimed, challenging the zoning ordinance on the grounds that it was an impermissible content-based restriction on speech. After a trial court decision in favor of the city, an appeal and a remand of some of the counterclaims, the city argued that the court did not have subject-matter jurisdiction over the counterclaims because the building owner had failed to file notice of the suit with the Ohio attorney general, as required by statute. The building owner subsequently filed the appropriate notice with the attorney general, and the attorney general declined to intervene. Distinguishing Ohio Supreme Court precedent, the court of appeals held “[T]he Attorney General had time to review the matter after receiving service and in fact elected not to participate in the action. Neither the city nor the Attorney General was prejudiced by the late service on the Attorney General.”
In Kubersky v. Cameron Indus., Inc., 2019 N.Y. App. Div. LEXIS 4864 (June 18, 2019), the New York trial court also concluded that late service of the complaint on the attorney general did not bar the action. In June 2016, plaintiff filed an action against her employer, alleging unlawful retaliation in violation of New York labor laws. She served notice on the attorney general in September 2017. Defendants moved for summary judgment on the grounds that plaintiff had failed to provide notice to the attorney general “at or before commencement” of the action, as required by the statute.
The trial court cited an earlier New York appellate case in which the court held that the notice requirement may not be considered a “condition precedent” to the action because “the requirement that notice be given is designed solely to apprise the Attorney General that such an action was commenced so that he would be aware of the circumstances.” The legislature had enacted the statute at issue here after that decision had been rendered, so the trial court assumed the legislature had been aware of it when choosing to use similar language in the applicable labor statute The court held, “plaintiff’s failure to serve notice on the attorney general until one year after commencing the action against her former employers, but during the course of litigation, does not require dismissal of her action.”
Communications Between NAAG, AG Offices in Tobacco Litigation Are Protected by Work-Product, Attorney-Client Privileges
In the course of a discovery dispute in state court litigation involving the tobacco master settlement agreement (MSA) and associated statutes, plaintiff tobacco manufacturer filed a motion to compel production of certain documents that the North Carolina attorney general asserted were privileged. The court upheld the attorney general’s privilege claims with respect to most of the documents.
The court first addressed the claims that the documents were work-product. The court concluded that the NAAG Tobacco Center, the North Carolina attorney general’s office (NCAGO) and the other attorney general offices (OAGs) reasonably anticipated litigation based on a communication from the tobacco manufacturer about release of escrow funds. Because the states have been in litigation with tobacco manufacturers on this issue a number of times in the past, it was reasonable of them to anticipate that litigation would ensue.
Turning to the question of attorney-client privilege, the court held that the NCAGO had an attorney-client relationship with the governor and other state agencies for purposes of this proceeding. The court also concluded that there is a common legal interest among “the NAAG Tobacco Center and the OAGs, with regard to compliance with the MSA and related escrow statutes.” The court explained,
NCAG, the NAAG Tobacco Center, and the OAGs are parties to a written Common Interest Agreement, in which they’ve agreed to share information on a confidential basis for the purpose of facilitating the NAAG Tobacco Center’s representation and advisement of the Settling States on legal matters related to MSA compliance and to ensure that the Settling States undertake a unified approach with respect to legal issues arising under the MSA and its escrow statutes. . . . [T]he NAAG Tobacco Center, and the OAGs share a common legal interest in enforcing the MSA and its related escrow statutes. They enforce the same agreement and have adopted the same model statutes.
North Carolina’s public records statute allows documents to be protected through the attorney-client privilege for only three years after the date of the document. Although the court held that the documents at issue were protected by the attorney-client privilege, the documents that were more than three years old were now public records and subject to disclosure.
- 484 U.S. 72 (1987).
- 576 U.S. ____, 135 S. Ct. 2652 (2015).
- 406 U. S. 187 (1972).