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Decisions Affecting the Powers and Duties of 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.


Amicus Brief on Standing of Proponents of an Initiative to Pursue Appeals if Public Officials Decline to Do So

Perry v. San Francisco No. S189476, Brief of Attorney General Kamala D. Harris as Amicus Curiae (May 2, 2011).

California voters passed Proposition 8, a state initiative to ban gay marriage. Several parties filed suit in federal court, seeking to enjoin state and local officials (including the Attorney General) from enforcing the initiative on civil rights grounds. Proponents of the initiative were granted leave to intervene as defendants. The Attorney General then admitted that the initiative violated the Equal Protection clause and declined to defend it. Other state officials, including the governor, also declined to defend the initiative, leaving its defense in the trial court to the initiative proponents. However, all state officials continued to enforce the law, and no gay marriages have taken place in California since adoption of the initiative.


The district court held that the initiative violated the Due Process and Equal Protection clauses of the 14th Amendment and enjoined its enforcement by state officials, including the Attorney General. The proponents of the initiative filed an appeal although none of the state officers did so. A mandamus proceeding was filed in state court seeking to force the Attorney General and governor to appeal the trial court’s decision, but that proceeding was summarily dismissed and appeal was denied. The Ninth Circuit then certified the following question to the California Supreme Court:

Whether under Article II, Section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.

California Attorney General Kamala Harris filed an amicus brief arguing that “the role of official proponents in the exercise of the initiative power does not confer on the proponents of a successful initiative a substantive right either to defend that measure or to appeal a judgment invalidating it.” The Attorney General’s brief first addressed the role of initiative “proponents.” This role is defined in statute, not in the state Constitution, and their role ends after the signatures of a sufficient number of electors are submitted to election officials. The Attorney General’s brief then noted that the initiative process is a reservation of the legislative power of government that is otherwise vested in the Legislature and is therefore “generally coextensive with the power of the Legislature to enact statutes.” Because “the authority to assert the state’s interest in the validity of state law is an executive function, not a legislative function,” the initiative’s proponents have no authority to undertake litigation concerning the validity of the initiative in the name of the state.

The Attorney General’s brief also noted that the Attorney General, as chief legal officer for the state, “is the only person to whom authority is given by law to appear for the people in this Court.” The Attorney General is also vested with discretion, and part of that discretion “is to decide, with respect to asserting the interest of the state in litigation, what is and what is not in the public interest.

Finally, the brief argued that California courts have liberally granted leave to intervene to initiative proponents, but that intervention does not give proponents the right to assert a state interest. “[T]he legitimate post-adoption interests of both official proponents and organizations of initiative supporters are acknowledged and accommodated by granting permissive leave to intervene or to file amicus briefs to represent their own interests.” The brief concludes, “To the extent that the people, state officials, or the state itself have an interest in the validity of an adopted initiative, the authority to represent that interest lies with the public officials responsible for enforcing the law, and ultimately with the Governor and Attorney General.


CID Enforcement

” ABC Inc.” v. Commonwealth 11-CI-00119 (Franklin Dist. Ct., Dist. 1, Mar. 25, 2011)

The Kentucky Attorney General initiated an investigation of for-profit post-secondary institutions under the state’s consumer protection law. In connection with that investigation, the office issued civil investigative demands (CIDs). A corporation that received one of the CIDs filed suit, challenging the CID as overbroad and alleging that there was no reasonable basis to investigate the industry. The plaintiff company filed the suit anonymously, as ABC Inc., alleging that there could be negative publicity if it was known to have received a CID. The Attorney General challenged the corporation’s right to file suit anonymously.


The court held that the company had “failed to articulate any basis for the request for anonymity other than an inchoate concern that there might be negative publicity attendant upon an open challenge to the Attorney General’s CID.” The court held that the mere fact of receiving a CID did not “give rise to a right to invoke the jurisdiction of the Court and to litigate its challenge to the authority of the Attorney General under a veil of secrecy which would deny the public the right to know the identity of the parties to this action.” The court also noted that the cases in which plaintiffs have been permitted to proceed under pseudonyms have involved privacy rights, which corporations do not have. The court also supported its holding by noting that if the Attorney General had issued a subpoena, either in a civil or a criminal case, that fact would be public. The court gave the plaintiff 10 days to file its complaint in its own name, holding in abeyance the plaintiff’s other claims. The court later dismissed those claims.

New Hampshire

Attorney General Cannot Be Required by Legislature to File Suit

Opinion of the Justices (Requiring Attorney General to Join Suit) No. 2011-319 (N.H., June 15, 2011)

The New Hampshire Senate requested an advisory opinion from the state supreme court as to whether HB 89, a bill which “requir[ed] the Attorney General to join the lawsuit challenging the Patient Protection and Affordable Care Act” violated the state’s Constitution.


The state Supreme Court held that HB 89 is unconstitutional because it violates the separation of powers doctrine in the New Hampshire Constitution, which provides, “In the government of this state, the three essential powers thereof, to wit, the legislative, executive and judicial, ought to be kept as separate from, and independent of, each other as the nature of free government will admit . . .” Citing previous decisions, the court held that “the New Hampshire Separation of Powers clause is violated when one branch usurps an essential power of another.” The court cited the state constitution’s provision stating that the governor is “responsible for the faithful execution of the laws.” Reviewing the history of the state’s constitution, the court concluded that the constitution gives “the executive the exclusive power to enforce the law” and made the executive responsible for “initiating civil actions on behalf of the State. . . The executive branch alone has the power to decide the State’s interest in litigation.”

The legislature argued that HB 89 was an exercise of the legislature’s power “to set forth the several duties, powers and limits, of the several civil and military officers of this state...” The court did not agree, stating, “In mandating this action—to join a specific lawsuit on a particular side—the legislature would exceed its authority to prescribe the duties of the attorney general. In so doing, it would deprive the executive of its essential power to determine the State’s interest in civil litigation.” The court also dismissed the legislature’s argument that the filing of this case was a political, rather than a legal, decision. The court stated, “The policy-making authority to determine whether the State should join the Florida lawsuit has been delegated by the constitution to the executive branch. It is the executive, not the legislative branch, in which the constitution vests the power to determine the State’s interest in any litigation.


Attorney General Must File Appeal Upon Request from Agency Head

Goldmark v. McKenna, No. 84704-5 (Wash. Sept. 1, 2011)

The Washington Attorney General pursued a condemnation action for the state’s commissioner of Public Lands. The state lost the case at the trial court level, and the Attorney General declined to appeal, based on his evaluation of the merits of the case. The commissioner sought a writ of mandamus to compel the Attorney General to appeal the case. The Washington Supreme Court held that the Attorney General had a statutory duty to provide the commissioner with legal representation.


The court first examined three statutes that address the Attorney General’s representation of state agencies. RCW §43.10.040 states that the Attorney General “shall also represent the state and all officials, departments, boards, commissions and agencies of the state in the courts, and before all administrative tribunals or bodies of any nature, in all legal or quasi legal matters, hearings, or proceedings . . .” RCW §43.12.075 provides, “It shall be the duty of the attorney general, to institute, or defend, any action or proceeding to which the state, or the commissioner or the board, is or may be a party, or in which the interests of the state are involved . . “ RCW §43.10.067 provides that state agencies must be represented by the Attorney General.

The court concluded that the Attorney General is required by these statutes to provide representation to the commissioner. In addition, because of the prohibition on hiring other counsel, the commissioner would be left with no attorney if the Attorney General did not represent him. “Such refusal would place agency policy-making decisions with the attorney general, rather than the elected official, board, or administrator who has been delegated that duty.” The court also rejected the Attorney General’s argument that his statutory duty was satisfied by representing the commissioner in the trial court. The court stated, “Rather than separate the various stages of litigation, we read these provisions as written: every phase of the litigation, whether trial court or appellate level, is an aspect of one proceeding, and therefore of one continuing duty.” The court also rejected the Attorney General’s reliance on past cases that have affirmed the Attorney General’s discretion. The court ruled that those cases involved third parties who were attempting to get the Attorney General to take action. There is no similar statutory requirement that the Attorney General represent third parties, so the cases are inapposite.

Turning to the grant of mandamus, the court stated that “Mandamus is an extraordinary remedy that we grant only if the mandatory act sought to be compelled is not discretionary.” Thus, the court had to determine whether there was any discretion in the otherwise mandatory duty to represent the commissioner. The court first noted that the Washington Attorney General does not have common law powers, but only those conferred by constitution and statute. The court analyzed several cases in which the Attorney General had discretion to initiate cases. However, those cases did not involve statutes that mandated representation by the Attorney General. The court also distinguished cases in which the Attorney General was given discretion as to the direction of the case. The court stated, “But this strategical discretion within the representation does not control the question of whether such representation must be provided in the first instance.” The court granted the writ, concluding, “Given the mandatory language of the statute and the prohibition of hiring outside counsel, no discretion is involved, and representation is required.


Attorney General Has Discretion to File Lawsuit, Despite City’s Objection

City of Seattle v. McKenna, No. 84483-6 (Wash. Sept. 1, 2011)

The Washington Attorney General filed suit with a number of other states against a federal health care statute. One month later, the City of Seattle filed suit in state court, seeking a writ of mandamus forcing the Attorney General to dismiss the suit. The governor also notified the Attorney General that because she did not approve the filing of the suit, it should be brought in the name of the Attorney General, rather than the name of the state.


The court noted that “Mandamus is only available to compel an official to do a nondiscretionary (i.e., “ministerial”) act. . . . In short, if the attorney general had authority to initiate this type of litigation, based on either the Washington Constitution or statute, mandamus is unavailable.” The court first examined whether the Washington Attorney General has common law powers, concluding that all of the Attorney General’s powers are delegated, and are found only in the state constitution or statutes.

The court then analyzed the statutory authority of the Attorney General, including RCW 43.10.030, which provides, “The attorney general shall . . . [a]ppear for and represent the state before the supreme court or the court of appeals in all cases in which the state is interested.” Past decisions of the supreme court indicate that this provision “grants the attorney general discretionary authority to act in any court, state or federal, trial or appellate, on “a matter of public concern,” . . . provided that there is a “cognizable common law or statutory cause of action.” (citations and footnotes omitted). Because the health care law was a matter of public concern and challenging the constitutionality of federal statutes is a “cognizable” cause of action, the Attorney General’s action was within his statutory authority.

Finally, the court declined to rule on the issue of whether the Attorney General properly made the state a party to the litigation, rather than acting in his individual capacity. The governor argued that when the Attorney General and the governor disagree, the Attorney General may not bring an action in the name of the state. The court held that since the governor was not a party to this case, the question need not be addressed.

West Virginia

Attorney General Parens Case Not Subject to CAFA

State ex rel. McGraw v. CVS Pharmacy, Inc., 2011 U.S. App. LEXIS 10171 (4th Cir. 2011).

The West Virginia Attorney General filed suit in state court against several pharmacies, alleging they failed to pass on lower costs of generic drugs when filling consumer prescriptions, in violation of the state’s consumer protection and pharmacy laws. The state sued in its ”sovereign and quasi-sovereign capacity” and sought injunctive relief, restitution and disgorgement of overcharges, recovery on behalf of the consumers, civil penalties, interest, costs, and attorneys' fees. The defendants removed the case to federal court under the Class Action Fairness Act (CAFA), alleging that it was a “disguised class action.” The district court remanded the case to state court, holding that it was a classic parens patriae action and not a class action subject to CAFA removal. The Fourth Circuit affirmed.


The pharmacies argued that the "complaint [was] a disguised class action" designed "to recover funds on behalf of those consumers who have allegedly paid overcharges," and was therefore a removable class action under CAFA. CAFA defines a class action as "any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action." The Fourth Circuit held that the West Virginia statute under which the Attorney General brought the action is not “similar” to Rule 23. The Attorney General is not a member of the class whose claim is typical of the class. Instead, the Attorney General is vindicating the “State's sovereign and quasi-sovereign interests, as well as the individual interests of the State's citizens.” The court also held, “[I]n representing the citizens, the State acts more in the capacity of trustee representing beneficiaries or a lawyer representing clients, neither of which is the type of representation essential to the representational aspect of a class action.


Third Party Subpoena, Not Attorney General, is Proper Source of Discovery from State Agencies.

United States et al. v. American Express Co., No. 10-CV-04496 (S.D.N.Y. July 29, 2011)

The U.S. Department of Justice and a number of states sued American Express, alleging the rules that the card issuer has in place preventing merchants from offering consumers discounts, rewards and information about card costs are anticompetitive and result in higher prices to consumers. The states did not seek damages. Amex sought party discovery from a wide variety of state agencies. The states objected, arguing that 1) state agencies are not plaintiffs for purposes of discovery, and 2) the states do not have possession, custody or control over the documents sought, so they should be obtained through third-party subpoenas.


The magistrate judge noted that both parties relied on U.S. v. AT&T. In that case, the court held that when the United States was a plaintiff, the executive agencies were subject to party discovery. The court also held, however, that independent agencies were not subject to party discovery because the U.S. Department of Justice had no way to compel those agencies to cooperate. The court also cited Colorado et al. v. Warner Chilcott Holdings Co. III, Ltd., in which the court held that state agencies were not plaintiffs for purposes of discovery because of the duality of the state Attorneys General and governors. The Attorneys General had no means to compel the executive agencies to comply with party discovery. Characterizing the dual nature of state governments as “purposeful,” the magistrate judge found that the state agencies are neither subject to common control nor interrelated with the Attorney General. Amex argued that the Attorneys General are compelled in some cases to represent state agencies in litigation. But the magistrate judge found

[T]he decision to bring this antitrust action was not an instance of compulsory representation, or done specifically on behalf or in protection of any state agencies. Rather, the decision to pursue an enforcement action against Amex was one of policy, made independently of the State Governors and state agencies.

The magistrate judge then addressed the question of whether the Attorneys General had custody or control of the documents. After reiterating that the state agencies act outside the authority of the Attorney General, the court stated,

To find that the State Attorneys General have control over the documents in possession of state agencies that operate wholly independently of the State Attorneys General would be giving the Governors’ Office and state agencies a “virtual veto” over the policy decision to bring an enforcement action that rightfully lies with the State Attorneys General.

Amex also argued that the Attorneys General are representing their state agencies in connection with any third-party subpoenas issued, and must therefore have some custody or control of the documents. The court compared the Attorneys General to a law firm representing a client, and noted that the law firm would “strenuously object” if when they brought a case on behalf of one client, their opponent sought documents from another client, or from the law firm itself, as party discovery.

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