Emily Myers, NAAG Powers and Duties Chief Counsel and NAGTRI Program Counsel
AG Authority to Sue the Federal Government
The ability of the attorney general to sue the federal government was recently addressed and affirmed in three states by two federal cases and by a new state statute. All three resulted from the issuance of two executive orders by President Trump entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.”
The first decision in connection with the executive orders was in federal court in Washington. The states of Washington and Minnesota sought a temporary restraining order to enjoin enforcement of parts of the first executive order, issued on Jan. 27. The district court granted the request for a temporary restraining order (TRO), finding that the states faced irreparable injury because “The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders.” The court also found that the states would be harmed by the damage the Executive Order inflicts upon “the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds.” Washington v. Trump, 2017 U.S. Dist. LEXIS 16012 (W.D. Wash. Feb. 3, 2017).
The federal government sought a stay of the TRO. The Ninth Circuit denied the stay, holding that the federal government had not shown a likelihood of success on the merits, nor that failure to enter a stay would cause irreparable injury. With respect to the standing of the states to sue, the Ninth Circuit noted that a number of faculty at the state universities, which the parties agreed were part of the state, were unable to either travel to the United States or fulfill professional obligations outside of the United States because of the executive order. Because the interests of the students and faculty members were “inextricably bound up” with that of the states, the court concluded, “as the operators of state universities, the States may assert not only their own rights to the extent affected by the executive order but may also assert the rights of their students and faculty members.” In light of this conclusion, the court declined to address the question of whether the states have standing to advance the interests of their citizens as parens patriae. Washington v. Trump, 2017 U.S. App. LEXIS 2369 (9th Cir. Feb. 9, 2017)
The same executive order was the impetus for Joint Resolution 1, enacted by the Maryland General Assembly on Feb. 15, 2017. Under Maryland law, the attorney general, who does not have common law powers, was required to seek permission from the governor before suing the federal government. The attorney general sought permission from the governor to challenge the executive order discussed above, but the governor did not respond to his request. The legislature then enacted the Joint Resolution, in which the legislature “directs the Attorney General to investigate, commence, and prosecute or defend any civil or criminal suit or action that is based on the federal government’s action or inaction that threatens the public interest and welfare of the residents of the State” with respect to a number of specific matters and “otherwise protecting, as parens patriae, the State’s interest in the general health and well-being of its residents.” The Joint Resolution also required the attorney general to give the governor written notice of the intended action and an opportunity to review and comment on it, but does not require that the attorney general receive permission from the governor. Maryland Joint Resolution 1, Feb. 15, 2017.
In response to these and other decisions, the president issued another executive order with the same title on March 6. The state of Hawaii, which had filed suit to challenge the earlier order, but whose action the court had stayed, filed a second amended complaint alleging that the second executive order subjects portions of the state’s population to discrimination in violation of the Constitution and of the Immigration and Naturalization Act. The state alleged proprietary injuries to the state in two areas, its university system and tourism.
The state argued that its university system, which “recruits students, permanent faculty, and visiting faculty from the targeted countries” would suffer actual financial injuries because it recruits from the six countries affected by the executive order and those students who do not have visas will not be able to attend the University. The state also alleged non-monetary proprietary injuries, including “damage to the collaborative exchange of ideas among people of different religions and national backgrounds on which the State’s educational institutions depend. . . . This will impair the University’s ability to recruit and accept the most qualified students and faculty, undermine its commitment to being “one of the most diverse institutions of higher education” in the world, . . . and grind to a halt certain academic programs, including the University’s Persian Language and Culture program.” The court found these injuries, which were similar to those found sufficient by the Ninth Circuit in the case described above, were sufficient to support standing.
The state also alleged that tourism would suffer, citing data showing a reduced level of visitors from affected countries during the month of January, compared to the previous January. Because tourism is such a large part of Hawaii’s economy, “a decline in tourism has a direct effect on the State’s revenue” and is sufficient to convey standing on the state.
The state also alleged a parens patriae interest in preventing the executive order from “subject[ing] citizens of Hawai‘i . . . to discrimination and marginalization while denying all residents of the State the benefits of a pluralistic and inclusive society. Hawai‘i has a quasi-sovereign interest in ‘securing [its] residents from the harmful effects of discrimination.’” The court declined to reach the state’s parens patriae interest in determining standing, since the state’s proprietary interests were sufficient. The court granted the TRO. State of Hawai’i v. Trump, No. 1:17-cv-00050 (D. Haw. March 15, 2017).
Separation of Powers
The powers of the governor and the attorney general of Louisiana were clarified in a recent state trial court decision. The governor issued an executive order that prohibited harassment or discrimination by state agencies on the basis of several classifications, including sexual orientation or gender identity. The executive order also required that all state contracts include a provision prohibiting such discrimination or harassment. The Louisiana attorney general sued the governor, arguing that his executive order was invalid because it violated existing law, violated separation of power requirements in the Louisiana Constitution and created a new protected class of persons. The trial court agreed with the attorney general that the executive order expanded existing law and violated the separation of powers doctrine by usurping the legislature’s authority.
The governor had also filed suit against the attorney general, seeking a declaratory judgment that the governor is the superior constitutional officer to the attorney general and that the attorney general has no role in supervising or approving actions of attorneys representing state agencies except as specified by statute. The attorney general argued that the office of attorney general is the primary supervisor and appointing authority for outside legal counsel for the state and all state agencies.
After reviewing relevant statutes, the court concluded that, while state agencies have the right to retain counsel of their choice, the attorney general “is vested with the authority to use his/her discretion in approving contracts for private legal counsel to state agencies.” However, once private counsel has been lawfully appointed, the attorney general does not have authority to supersede the actions of the private counsel, nor can the attorney general review the counsel’s assertion of claims on behalf of the state or advice to state agencies. Finally, the court held that the office of the governor is constitutionally superior to that of the office of the attorney general. The court declined to decide at this time “whether the dictates of the office of the governor are superior to that of the office of the attorney general when a dispute between them exists over any and all legal matters involving the interest of the State of Louisiana.” Louisiana Department of Justice v. Edwards, No. 652,283 (La. 19th Jud. Dist. Ct. Dec. 14, 2016).
The Arizona attorney general’s civil investigative demand (CID) authority was upheld in a recent decision by the state’s court of appeals. A rental real estate company that was being investigated by the Attorney General’s Office for fraudulent claims about their apartments challenged the attorney general’s CID on several grounds. The trial court upheld the attorney general’s issuance of the CID and the plaintiff appealed.
The court of appeals upheld the CID, finding no abuse of discretion by the trial judge. First, the court held that the attorney general did have probable cause to issue the CID. Under Arizona law, the state need only have “sufficient evidence to satisfy a judge that it is reasonable to believe that there has been a violation of the [consumer statute].” The court is not required to weigh the state’s evidence, but may assume its accuracy. In this case, the state had shown reasonable cause through a number of exhibits and the testimony of its investigator. Second, the court dismissed the plaintiff’s claim that the state had a retaliatory motive for pursuing the CID, citing as evidence an 18-month delay between receipt of a consumer complaint and the petition to enforce the CID. The court noted that during that time, the attorney general “interviewed tenants and collected municipal actions taken against the plaintiff.” The court also noted that, under Arizona law, “dilatory conduct cannot stop the state from pursuing statutory remedies available to it.” State ex rel. Brnovich v. 6635 N. 19th Avenue, Inc., 2016 Ariz. App. Unpub. LEXIS 1601(Ariz. Ct. App. Dec. 20, 2016).
The Attorney General and Qui Tam
Several recent cases addressed the authority of the state attorney general in the context of qui tam proceedings. In each case, the attorney general’s primacy in those cases was affirmed.
In a New York qui tam proceeding, the attorney for the relator filed a brief stating that he was representing “the People of the State of New York.” The attorney general asked the court to strike this statement because the relator’s counsel did not represent the state of New York. The court stated that the attorney general of New York is the chief law enforcement officer of the state and “represents the State in actions and proceedings, presents legal arguments on behalf for the State, and speaks for the State.” The court held:
While New York’s False Claims Act permits plaintiff to bring this action “on behalf … of the people of the State of New York” (State Finance Law section 190(2)(a)), plaintiff’s counsel does not represent the State as only the Attorney General can represent the State, which has declined to intervene. In short, the relator’s contention that he represents the State itself clearly conflicts with the definition and function of the Attorney General’s Office.
The court struck the statement from the record. People of New York ex rel. Qui Tam v. Bayrock Group, 2017 N.Y. Misc. LEXIS 685 (N.Y. S. Ct. Feb. 24, 2017)
An Illinois appellate court addressed the attorney general’s role in qui tam proceedings in a case challenging the dismissal of an action by the attorney general and seeking to disqualify the attorney general. A qui tam plaintiff brought a claim against the Mortgage Electronic Registration Systems, Inc. (MERS) alleging that MERS had made false statements in order to avoid paying mortgage assignment fees to Illinois counties. The attorney general declined to take over the case. At the relator’s request, the court ordered the state to turn over its investigatory files on MERS for in camera inspection. The attorney general then filed a motion to dismiss the case. The relator filed a motion to disqualify the attorney general, alleging that the attorney general had been honored at an awards dinner four years earlier, which was sponsored by some of the defendants. The trial court dismissed the relator’s complaint and held there was no conflict of interest. The relator appealed.
The court of appeals held that the dismissal of the complaint was proper because
[t]he State is the real party in interest in qui tam actions – qui tam plaintiffs, acting as statutorily designated agents for the state, may proceed only with the consent of the Attorney General and remain completely subordinate to the Attorney General at all times. [Citations omitted.] Further, the Attorney General possesses the authority to control the qui tam action at every stage.
With respect to the disqualification of the attorney general, the court held, “There are two situations in which the Attorney General has a conflict of interest in a case: (1) the Attorney General is interested in the case as a private person; and (2) the Attorney General is a party to the action.” Because neither of those situations arose here, there was no reason for disqualification. Illinois ex rel. Saporta v. Mortgage Electronic Registration Systems, Inc. 2016 Ill. App. 3d (Ill. App. Ct. Dec. 19, 2016).
Attorney General Relationship with Local Prosecutors
The relationship between the office of attorney general and local prosecutors was discussed and clarified in two recent cases. In a mandamus action brought by a state’s attorney in Illinois, the court invited the government to file a mandamus action in a case involving mandatory sentences. The prosecutor, the state’s attorney for Cook County, filed the action. The defendant in the case challenged the mandamus action, arguing that the attorney general is the only officer authorized to bring a petition for writ of mandamus.
The Illinois Supreme Court first held that the state’s attorney is a constitutional officer “with rights and duties analogous to or largely coincident with the Attorney General, though not identical, and the one to represent the county or People in matters affected with a public interest.” Noting in dicta that the legislature could not “constitutionally, usurp or diminish the powers of State’s Attorneys and the Attorney General,” the court held that statutes prescribing certain duties of the two officers did not diminish or circumscribe their powers. The court held that the state’s attorney could act as the attorney general’s agent or assist the attorney general and could “function as an active participant—with the Attorney General—in appeals to this court from his or her county.” The court stated,
To be sure, the Attorney General is the chief law enforcement officer of the state and, as such, is afforded a broad range of discretion in the performance of public duties, including the discretion to institute proceedings in any case of purely public interest. [Citations omitted.] The primacy of the Attorney General in that respect is not open to question.
In this case, although the attorney general could have instituted the mandamus action, the court held that “the State’s Attorney from whose county the underlying criminal case arose had the authority and standing to bring this action as well.” Among other reasons, the court cited, “notice to the Attorney General of the pendency of this action, and no objection on her part therefrom or attempt to intervene or espouse a position contrary to that taken by the State’s Attorney, who may properly be seen as a state agent of the people and the Attorney General in this matter.” Finally, the court noted the attorney general’s “discretionary preeminence in legal matters,” as chief legal officer of the state. People ex rel. Alvarez v. Gaughan, 2016 IL 120110 (Ill. Dec. 1, 2016)
The New Hampshire Supreme Court also recently issued a decision clarifying the relationship between the New Hampshire attorney general and the county attorneys in that state. The plaintiff in the case was a former employee of a county attorney. That county attorney had been suspended from his duties by the attorney general while he was the subject of a criminal investigation. After the investigation ended and the attorney general and the county attorney reached a settlement, plaintiff sought investigatory material from the attorney general through New Hampshire’s Right to Know law. The attorney general withheld a number of documents on the grounds that, among other reasons, they were internal records pertaining to personnel practices. The trial court upheld the attorney general’s withholding of the documents and plaintiff appealed, arguing that the attorney general’s investigation of the county attorney cannot be considered “internal.”
The New Hampshire Supreme Court agreed with the plaintiff that the records did not pertain to internal personnel practices because “the Attorney General is simply not the County Attorney’s employer.” Distinguishing prior case law, the state Supreme Court held that, in order to be protected, documents must be generated in an investigation by or on behalf of the employer of the target of the investigation. The court had not previously decided whether the county attorneys were employees of the attorney general, so the court analyzed a number of factors that indicate employment. The county attorney is not selected by the attorney general, but rather elected. Only the court, not the attorney general may remove the country attorney from office. The attorney general does not pay the salary of the county attorneys.
On the other hand, the court found that the “attorney general does possess some supervisory authority over country attorneys.” The court held, “Construed together, the above-cited provisions “demonstrate a legislative purpose to place ultimate responsibility for criminal law enforcement in the Attorney General, and to give him the power to control, direct and supervise criminal law enforcement by the county attorneys in cases where he deems it in the public interest.” Despite these statutory provisions, the court held, “the attorney general’s supervisory authority over criminal law enforcement by the county attorney is not sufficient, in light of the absent characteristics noted above, to warrant treating the [attorney general] as [the county attorney’s] employer for purposes of the ‘internal personnel practices’ exemption.” Reid v. New Hampshire Attorney General, 2016 N.H. LEXIS 238 (N.H. Dec. 23, 2016).
AG Not Entitled to Notice on Constitutional Challenge to Criminal Law
In many states, parties challenging the constitutionality of a statute are required to notify the attorney general of their claim. The Nevada Supreme Court recently determined that the attorney general is not entitled to such notice in criminal proceedings.
Respondents Escalante and Funez were charged with trespassing at a casino in Las Vegas. They moved to dismiss the charges on the grounds that Nev. Rev. Stat. § 207.200(1)(a) was unconstitutionally vague. That statute provides that “any person who, under circumstances not amounting to a burglary . . .[g]oes upon the land or into any building of another with intent to vex or annoy the owner or occupant thereof . . .” The respondents argued that “vex or annoy” is void for vagueness. They did not notify the attorney general of the constitutional challenge.
The district court granted the motion to dismiss in part, holding that the “vex or annoy” requirement was unconstitutionally vague. Defense counsel was ordered to provide a copy of the decision to the attorney general. The attorney general then filed a motion to reconsider, arguing that he was entitled to notice of the constitutional challenge under Nev. Rev. Stat. § 30.130. That statute provides:
When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard, and if the statute, ordinance or franchise is alleged to be unconstitutional, the Attorney General shall also be served with a copy of the proceeding and be entitled to be heard.
The trial court held that Nev. Rev. Stat. § 30.130 applied to declaratory judgment actions and has no applicability to criminal proceedings. The attorney general sought a writ of mandamus in the Nevada Supreme Court.
The state Supreme Court examined the plain language of the statute and determined that it applied only in cases where declaratory relief was sought, not in criminal proceedings. In addition to its language, the statutory provision is part of the Uniform Declaratory Judgment Act (UDJA), which applies only to declaratory judgment proceedings. Other state courts have held that the attorney general is not entitled to notice in criminal proceedings, and the Nevada Supreme Court followed that precedent. The court noted that the attorney general is permitted under Nevada law to exercise supervisory powers over the district attorneys and to require periodic reports from them. The court suggested that the attorney general could require the district attorneys to “report on constitutional challenges to statutes in criminal proceedings.” State of Nevada v. Justice Court of Las Vegas Township, 133 Nev. Advance Op. 12, No. 70795 (Nev. April 6, 2017).