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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.


Attorney General Cannot Control Governor’s Gambling Task Force

Ex parte State of Alabama et al. (Pet. For Writ of Mandamus) No. 1090808 (Ala. May 21, 2010)

The Alabama governor created, by Executive Order, a Gambling Task Force, for the purposes of “promoting and supporting uniform statewide enforcement of Alabama's anti-gambling laws and to carry out the Alabama Constitution's strong public policy against lottery schemes and illegal gambling.” The order created a special prosecutor to serve as the commander of the Task Force, who, in that capacity, had “statewide jurisdiction” to “conduct investigations, attend any regular, adjourned or special session of any circuit court . . . for the investigation of or the prosecution of any criminal case or the prosecution or defense of any case related to gambling activity in the State of Alabama.” The governor initially appointed a former district attorney to head the Task Force, pursuant to Ala. Code § 12-17-216, which provides for the appointment of supernumerary district attorneys who, “upon request of the Governor, the Chief Justice of the Supreme Court or the Attorney General” conduct investigations and prosecute criminal cases. The original “supernumerary” district attorney was later replaced as task force head by a current district attorney.

The Task Force conducted a raid on a facility and confiscated a number of electronic gambling machines and some money. No one from the Attorney General’s office or the county district attorney’s office was on the Task Force. As a result of this raid, a declaratory judgment action was filed by the operators of the gambling facility, and a forfeiture action was filed by the Task Force. Both actions were filed in the Circuit Court for Lowndes County. The trial court held that the statute contemplated that the supernumerary district attorney would act under the supervision and control of the Attorney General. Because the Attorney General did not authorize the filing of the answer and counterclaim in the declaratory judgment action and the complaint in the forfeiture action, those filings must be “regarded as a nullity, just as if they had been filed by a private citizen who claimed to represent the state.” Similarly, although the current head of the Gambling Task Force is a currently serving district attorney, he too is subject to the control of the Attorney General. The governor and members of the Task Force appealed the court’s ruling.

The Alabama Supreme Court held that the governor’s action in establishing the Task Force was within his executive power. The court reviewed the various state constitutional provisions that established the office of governor and enumerated its powers, and stated,

First, if our constitution's grant of "supreme executive authority" to the governor and its charge that the governor "take care that the laws be faithfully executed" mean anything in relation to a matter for which another constitutional officer is also given responsibility, they at least mean as follows: when the governor determines that, whether due to inaction or inadequate action by the other official, it is necessary for him to act lest the law go unenforced, he may act.

The court also determined that Attorney General’s common law powers do not conflict with the governor’s supreme executive powers, which are still paramount. The court held, “We conclude that the common-law powers that have been "prescribed" to the attorney general do not include the right to countermand the "chief magistrate" where the chief magistrate is acting within the bounds of the power given to him.” The court concluded, “the statutes discussing the powers and duties of the attorney general do not authorize the Attorney General to interfere with or to direct and control litigation being pursued by officers who are acting pursuant to directions from the governor [under the applicable statutes].” The court also overruled Ex parte Weaver, concluding that its holding that the Attorney General controls all litigation in the state is inconsistent with the “supreme executive authority” of the governor. In dicta, the court indicated that the Attorney General might be able to intervene in a case brought by the governor in order to represent the public interest.


AAG is Employee of “Law Enforcement Agency” for purposes of jury selection.

People v. Novotny, 2010 Colo. App. LEXIS 364 (Colo. Ct. App. Mar. 18, 2010)

In a criminal trial for murder and burglary, defendant challenged a prospective juror because he was an employee of the Colorado Attorney General’s office, representing the state Department of Corrections. Section 16-10-103(1)(k) requires a trial court to sustain a challenge for cause to a prospective juror who is "a compensated employee of a public law enforcement agency." In this case, the court denied defendant’s challenge because "the Attorney General does a whole bunch of things besides law enforcement" and "this guy works in an area that's not law enforcement." Defendant used one of his peremptory challenges to excuse the AAG, and subsequently used all of his peremptory challenges. Following prior rulings to the same effect, the Court of Appeals held that the statute applied to "any employee under the control of a law enforcement agency, irrespective of his or her job duties, so long as he or she was under the control of such agency", citing a "concern . . . that one who is employed by a law enforcement agency will favor, or will be perceived to favor, the prosecution side of a criminal case." The court then analyzed Colorado statutes to determine that the Attorney General’s office is a law enforcement agency within the meaning of the statute. This classification is supported by the Attorney General’s authority to prosecute criminal antitrust and securities violations and handle all appeals from criminal convictions. Therefore, the Attorney General’s office is a “law enforcement agency” for purposes of jury selection in Colorado.


Attorney General Qualifications

Bysiewicz v. DiNardo, No. HHD-CV-10-6008194S (Conn. Super. Ct. May 5, 2010)

In a rare case analyzing qualifications for the office of Attorney General, the Connecticut Supreme Court held that a candidate for Attorney General who had practiced law for four years in Connecticut and had then served a decade as secretary of state, did not meet the state’s statutory requirement that the Attorney General be “an attorney at law of at least ten years’ active practice of the bar of this state.”

Susan Bysiewicz filed suit against the head of the Democratic party in Connecticut, as well as the Democratic party and the secretary of state’s office (as the agency that is responsible for placing names on the ballot). She sought a declaratory judgment in Connecticut Superior Court that 1) the statutory requirement was unconstitutional or 2) if the statutory requirement is constitutional, her years of service as secretary of state constitute the active practice of law. The court allowed the Republican party of Connecticut to intervene.

Bysiewicz argued that the purely statutory provision requiring “ten years active practice at the bar of this state” is inconsistent with the Article VI, § 10 of the Connecticut Constitution, which provides in part that “Every elector who has attained the age of eighteen years shall be eligible to any office in this state, . . . except in cases provided for in this constitution” and that the statutory requirements violate her right as a Connecticut elector older than 18 years old to serve as Attorney General. Alternatively, she argued that her years in private practice as an attorney and her 11 years of public service as secretary of state, “fulfill[ing] her numerous statutory and administrative responsibilities” and supervising a number of attorneys qualify her for the position under the statutory language.

The trial court did an extensive analysis of Bysiewicz’s claims and determined that the statutory language was constitutional, and that “the ‘ten years’ active practice” requirement of General Statutes § 3-124 must be understood to mean that the Attorney General had 10 years’ experience actually engaging in some form of legal practice as a member of the bar of this state, although not necessarily doing so in a courtroom, or on a continuing basis, or with any particular degree of frequency or intensity.”

After analyzing each of the tasks that Bysiewicz performed as secretary of state, to determine whether they constituted the practice of law, the court concluded,

For the last eleven years the plaintiff, as Secretary of the State and the state’s Commissioner of Elections, has regularly drawn upon her skill and training as a Connecticut attorney to issue rulings, instructions and opinions concerning the administration of elections in this state. Her responses to such inquiries, when issued in written form, are presumed as a matter of law to be correct under General Statutes § 9-3. In addition, the plaintiff has regularly made herself available to give advice to local election officials in connection with properly conducting elections, as is required of her under General Statutes § 9-4. These requests, which are made of her personally almost every day, have frequently required the plaintiff to use her legal skill and training to give proper guidance to election officials for the benefit of the general public – in essence, all who will benefit from a properly held election. The Court concludes that by engaging in the performance of these services in her capacity as Secretary of the State throughout her tenure in office, the plaintiff has engaged in the practice of law for at least ten years.

The Republican Party appealed the court’s ruling. The Connecticut Supreme Court issued a single-page ruling, holding that Bysiewicz’s was not qualified to serve as Attorney General of Connecticut. The court is expected to issue a detailed ruling soon

New Jersey

Attorney General Office Advice to State Agency is Privileged, Not Disclosable Under State Sunshine Law

Paff v. Division of Law, 412 N.J. Super. 140; 988 A.2d 1239; (N.J. Super. 2010)

The New Jersey Appellate Division issued a decision holding that unpublished Administrative Agency Advice (AAA) letters issued by the New Jersey Attorney General’s Division of Law, which interpret the statutes and regulations the Division's administrative agency clients are required to apply and enforce, are not disclosable government records for purposes of the Open Public Records Act (OPRA), because they are protected by the attorney-client privilege.

The New Jersey Attorney General is the "sole legal adviser" for all state agencies, boards and authorities, and is also responsible for "interpret[ing] all statutes and legal documents" for those clients. N.J.S.A. 52:17A-4(e). The Attorney General accomplishes this by, among other things, issuing “legal opinions, known as Administrative Agency Advice letters, whenever a State agency requests legal advice.” The Attorney General designates some of these AAA letters as “formal” AAAs and releases them publicly. The remaining letters are considered by the Attorney General’s office to be confidential advice, and are not publicly released. Plaintiff made a request under the state’s public records act for a list of the topics of all informal AAA letters since 2002, and a request for all indexes of AG informal opinions or AAA letters. The Attorney General declined to respond to either request, citing attorney-client privilege.

A long line of New Jersey court decisions held that the attorney-client privilege exists for advice given by the Attorney General to state agencies. The court therefore focused on whether the subject of the AAAs was attorney-client privileged communication.

Plaintiff argued that this case was similar to Tax Analysts v. Internal Revenue Service, 117 F.3d 607, 326 U.S. App. D.C. 53 (D.C. Cir. 1997), in which the D.C. Circuit found that Field Service Advice Memoranda from the IRS were not protected by the attorney-client privilege because “FSAs issued by the Chief Counsel create a body of private law, applied routinely as the government's legal position in its dealings with taxpayers. It is this quality, not the objective character of the legal analyses in the documents, that [is] significant.”

The state argued that the AAAs were “not merely objective analyses of the law, as was the case in Tax Analysts and Coastal States” nor “binding opinion[s],” nor “administrative determination[s],” but were rather “advice by the Attorney General to a client, which the client could accept or reject."[citations omitted]

The Appellate Division held the AAAs privileged on the grounds that “state agencies requesting legal advice from their attorneys concerning the exercise of the statutory responsibilities they are required by law to discharge are entitled to receive legal advice from their attorneys on a confidential basis.” The court specifically declined to follow the D.C. Circuit’s decision in Tax Analysts, stating, “Nothing in the decisional or statutory law of this State would support the miserly view of the attorney-client privilege that the D.C. Circuit adopted in Tax Analysts . . .” The court concluded,

Thus, unlike the District of Columbia Court of Appeals, we are satisfied that an administrative agency or other public body is entitled to maintain the confidentiality of the legal advice it receives from its attorney concerning the interpretation of the very statutes and regulations that the agency is responsible for enforcing. We see no reason to conclude that such legal advice is any less deserving of the protection afforded by the attorney-client privilege than the advice provided by corporate counsel to its clients.

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