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Decisions Affecting the Powers and Duties of State Attorneys General

Emily Myers, Antitrust and Special Projects Counsel

This is another in our series reporting on recent decisions from across the country affecting the powers and duties of state Attorneys General.

Alaska–Attorney General May Waive 11th Amendment Immunity.

Akiachak Native Community, et al. v. Department of the Interior, 584 F.Supp.2d 1 (D.D.C. 2008)

The state of Alaska, through its Attorney General, sought to intervene as of right (under Federal Rule 24(a)) in a case brought by four federally-recognized Indian tribes against the United States and the Secretary of the Interior. The case challenged the validity of a regulatory bar prohibiting the Secretary from acquiring land located in Alaska into trust status for most federally-recognized Indian tribes. The state of Alaska sought to intervene as a defendant, arguing that eliminating the bar to acquisition of land in Alaska would diminish Alaska's sovereign authority to tax the plaintiffs' land and to enforce regulations uniformly throughout the state and would undermine the integrity of the settlement reached in the Alaska Native Claims Settlement Act. The plaintiffs alleged, among other grounds for opposing the intervention, that “the Attorney General of Alaska cannot act on behalf of the state to seek intervention in this case because he has not fulfilled the necessary prerequisites to validly waive Alaska's Eleventh Amendment immunity.”

An earlier Alaska case held that the Attorney General of Alaska had the authority to invoke the federal court's jurisdiction as a plaintiff, but did not have the authority to waive the state's 11th Amendment immunity which limited the defendant's ability to counterclaim. However, the court noted that the U.S. Supreme Court has held that because a state’s Attorney General waives the state’s 11th Amendment immunity when he or she voluntarily brings suit in federal court, the state’s grant of authority to its Attorney General to invoke a federal court’s jurisdiction is consent to waive the state’s 11th Amendment immunity by the Attorney General.[1]

In light of this holding, the court examined the powers and duties of the Alaska Attorney General. Alaska statutes provide “[t]he Attorney General shall ... represent the state in all civil actions in which the state is a party ... [and] perform all other duties as required by law or which usually pertain to the office of attorney general in a state.”[2] The language in this statute has been interpreted to give the Attorney General broad authority, including “those powers which existed at common law, except where they are limited by statute or conferred upon some other state official.” [3] Alaska case law also makes it clear that “The Attorney General has the power to intervene in cases in the public's interest.”[4] Therefore, the Attorney General, by filing the motion to intervene, is seeking to protect the state’s interests, within his statutory authority, and may waive the state’s 11th Amendment immunity.

California–Private Practice of Law by AAGs May Be Limited

Gibson v. Office of the Attorney General, ___ F.3d ___, 2009 WL 174915 (C.A.9 (Cal.)

An assistant attorney general (AAG) in the California Attorney General Office (OAG) represented a paralegal in the office in a malpractice claim against her former divorce lawyer. The AAG did not seek permission before undertaking this representation. The office notified her that she must terminate the representation or she would be fired. The AAG sued, alleging that the office had violated her First Amendment rights and that the office policy on outside representation was an unconstitutional prior restraint.

The lower court held, and the appellate court affirmed, that the OAG had not violated the AAG’s First Amendment rights. The appellate court also held that the OAG policy regarding outside legal representation was not an unconstitutional prior restraint. The court stated that in order to show a violation of their First Amendment rights, the employee must show that he or she engaged in protected speech. Among other factors to be considered in determining whether the speech was protected, the court considers whether the speech was about a matter of public concern. The court held that malpractice arising from a private divorce matter did not constitute a matter of public concern, and the speech was therefore not protected by the First Amendment.

The court next analyzed the OAG policy regarding outside representation. The court applied a two part test: 1) whether the speech that led to the adverse employment action relates to a matter of public concern, and 2) whether, using a balancing test, the public employer can demonstrate that its legitimate interests outweigh the employee's First Amendment rights. In this case, the Attorney General’s office policy states:

No lawyer employed by the Department of Justice shall engage in the private practice of the law, provided, however, that he may handle personal and family legal matters in which there is no conflict with his duties as a[n] employee of the state, after first obtaining approval of the Attorney General. Lawyers, upon becoming members of the Department of Justice, with the approval of the Attorney General, will be given a reasonable time within which to close pending legal matters.

The court held

[T]he OAG's policy here does not unduly restrict the constitutional rights of a state-employed lawyer. . . . The requirement to seek written permission before engaging in outside representation allows the OAG to assess whether the requested outside employment creates any conflict of interest or impedes any other legitimate interest of the state. . . . The OAG has a legitimate interest in regulating practice-related conduct of its lawyers to avoid any conflict of interest and to avoid any potential prejudice to the OAG and its clients, as well as a legitimate interest in ensuring that its employees are devoting their full attention to the business of the OAG.

Noting that the policy did not even restrict all outside employment, but only the practice or law, the court concluded that the policy was not an unconstitutional prior restraint on OAG employees.

Illinois–AG Does Not Have Standing To Challenge Illinois EPA Permitting Decision Upheld by EPA.

Citizens Against Ruining the Environment v. Environmental Protection Agency, 535 F.3d 670 (7th Cir. 2008)

The Illinois Environmental Protection Agency (IEPA) approved permits under the Clean Air Act for a number of coal-fired power plants in Illinois. The federal EPA did not object to the issuance of those permits. The Illinois Attorney General’s office and several environmental groups filed suit requesting the EPA administrator reject the permits. The administrator rejected the request, and the plaintiffs appealed.

The court first addressed whether the Attorney General had standing to pursue this claim. The Attorney General asserted standing as both a sovereign state and as parens patriae for its citizens. The court rejected the Attorney General’s argument that she could pursue the case as a sovereign state. The state cited Davis v. EPA, in which California had petitioned for a review of EPA’s denial of the state’s waiver request. The court distinguished Davis because California had an interest in the litigation because “it was the direct recipient of the EPA's denial. Here, by contrast, the IEPA issued permits to Midwest, which were reviewed (but not objected to) by the EPA. Thus, the EPA's actions were entirely consistent with Illinois' position, as advanced by the IEPA.”

The court also rejected the Attorney General’s standing as parens patriae. The court noted that a state may not bring a parens patriae suit against the federal government because there the United States, and not the state, represents the people's interests. Massachusetts v. Mellon, 262 U.S. 447, 485-86, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). Although the state could sue to vindicate its rights under federal law (as was the case in Massachusetts v. EPA, when the rising sea levels associated with global warming harmed the state itself), in this case, “the general interests of the people of Illinois would seem to be represented (at least informally) by the IEPA.” The court distinguished between formal and informal representation, acknowledging that “the authority to represent the State in litigation . . . is possessed exclusively by the Illinois attorney general when the State is the only real party in interest.” The court acknowledged that the Attorney General has “broad authority to protect public rights, which indicates that she has capacity to sue, standing must be independently established in every case.” That standing was not established here.

Kentucky–AG Tobacco Settlement Protected by State Action Immunity.

Vibo Corp. v. Conway, --- F.Supp.2d ----, 2009 WL 32845 (W.D.Ky.)

A subsequent Participating Manufacturer sued the Attorneys General of the states who entered into the Master Settlement Agreement (MSA) with the tobacco companies, alleging that their actions violated the Sherman Act. The court dismissed the challenge to the actions of the Attorneys General, saying,

A state simply is incapable of entering an agreement that violates the Sherman Act. The state-action doctrine traditionally is applied to acts of the legislature or regulatory schemes constructed by states. However, it also applies to actions by officials in the state's executive branch. . . . A state attorney general, as a member of the executive branch of government, is entitled to immunity for his or her executive actions. Any decision made by the defendant Attorneys General, therefore, either in negotiating and executing the MSA or in deciding not to execute the Amended Adherence Agreement, is direct state action falling completely outside the scope of the Sherman Act. . . . Other courts have held that the acts of the Attorneys General in negotiating and entering into the MSA are direct state action. [citations and footnotes omitted]

The court also dismissed the plaintiff’s Constitutional claims and held that the Attorneys General are immune from suit on the claims of fraudulent inducement.

New York–Attorney General Can Represent Out-of-State Plaintiffs

People by Cuomo v. H&R Block, Inc., 870 N.Y.S.2d 315 (N.Y. Sup. Ct. App. Div. 2008)

Defendants appealed a lower court decision in a case brought by the Attorney General alleging that the defendants engaged in a fraudulent scheme involving an investment product, Express IRA. The court of appeals specifically upheld the ability of the Attorney General to recover for plaintiffs outside the state. The court stated, “New York's vital interest in securing an honest marketplace in which to transact business was threatened when defendants used a New York business to complete the deceptive transactions at issue here by administering their money market fund, and advised customers that the New York business would be their ‘authorized agent’.”

[1]Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613 at 624 (2002).
[2] Alaska Stat. § 44.23.020.
[3] Botelho v. Griffin, 25 P.3d 689, 692 (Alaska 2001)
[4]Berger v. Alaska, 910 P.2d 581, 585

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