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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.


Attorney General Does Not Have Independent Authority to Investigate Crimes Involving Controlled Substances.

Johnson v. Kentucky, 2012 Ky. App. LEXIS 10 (Ky. Ct. App. 2012)

Defendant sought to dismiss three counts of trafficking in a controlled substance, arguing that the Attorney General did not have jurisdiction to conduct an investigation in Powell County because no local law enforcement was involved in the investigation, and the Attorney General was not invited to participate, as required by Kentucky statutes. The trial court denied his motion, and he appealed. The Attorney General argued that the investigation was within his common law and statutory powers. The trial court agreed with the Attorney General.


The Kentucky court of appeals reversed the trial court. The court analyzed Kentucky’s statutes, which provide that the Attorney General has all common law powers except when modified by statute. The court concluded that the legislature had determined that the Attorney General did not have “the common law power to investigate and prosecute cases at will.” The legislature had enacted Ky. Rev. Stat. §15.200, which states:

(1) Whenever requested in writing by the Governor, or by any of the courts or grand juries of the Commonwealth, or upon receiving a communication from a sheriff, mayor, or majority of a city legislative body stating that his participation in a given case is desirable to effect the administration of justice and the proper enforcement of the laws of the Commonwealth, the Attorney General may intervene, participate in, or direct any investigation or criminal action, or portions thereof, within the Commonwealth of Kentucky necessary to enforce the laws of the Commonwealth.


Because none of the specified officials had requested that the Attorney General investigate this matter, the court of appeals remanded the case to the trial court for a determination as to whether the evidence gathered in the investigation could be used. In reaching this decision, the court distinguished the power to prosecute from the Attorney General’s power to bring cases to protect the public interest, which is very broad under Kentucky law.

Johnson v. Kentucky, 2012 Ky. App. LEXIS 10 (Ky. Ct. App. 2012)

The Kentucky court of appeals recently reached a similar conclusion in a case involving a different defendant and a similar set of facts. In this case, the court relied on an Attorney General opinion from 1970, in which the Attorney General stated,

As the chief law officer of the state and legal adviser to its various agencies and political subdivisions, the Attorney General does not under Kentucky law possess any authority to administer or enforce that great body of law that by legislative mandate is the responsibility of the county and Commonwealth[’s] attorneys, for misdemeanors and felonies respectively, and the executive branch of government.

In light of this opinion, the court of appeals stated that the Attorney General’s office “does have a few specified investigative duties which are delineated by specific legislative authority. The authority exercised in the case now before us is not among them.

New Hampshire

Knowledge Imputed to Attorney General’s Entire Criminal Division.

New Hampshire v. Etienne, 2011 N.H. LEXIS 189 (N.H. 2011).

A criminal defendant convicted of murder appealed his conviction on the grounds, among others, that the Attorney General’s office had failed to disclose exculpatory evidence at his trial. One of the witnesses at the defendant’s trial had been prosecuted by the Attorney General’s office for unrelated drug charges, and the Attorney General’s office had recommended that he receive a suspended sentence for those charges in light of his cooperation in that case. Defendant argued that the evidence that a prosecution witness had received a light sentence at the suggestion of the Attorney General would have been favorable to his case.


The court reviewed New Hampshire law on exculpatory evidence. The defendant must first show that the evidence is favorable and material. However, if the defendant establishes that the prosecutor “knowingly” withheld the evidence, then the burden shifts to the prosecutor to show that the evidence would not have affected the verdict. In this case, the Attorney General argued that the attorneys prosecuting the murder case did not know anything about the state’s proffer in the unrelated drug cases, which were handled by a different attorney. The court held,

[W]e conclude that the knowledge of any attorney in the criminal bureau of the Attorney General's Office should be imputed to the State for purposes of determining whether the State "knowingly withheld" exculpatory evidence here.

The court also stated that although no single attorney knew of both the proffer and the fact that the witness would be testifying for the state in the murder case, the separate attorneys within the Attorney General’s office did possess all of this knowledge. Because the knowledge may be imputed, “the defendant established that the State possessed the information regarding Gomez's cooperation with the State on the drug charges.”


Outside Counsel Retained by Attorney General Must Be Paid from Attorney General’s Litigation Fund or Appropriated Funds.

Pickering v. Hood, 2012 Miss. LEXIS 247 (Miss. 2012); Pickering v. Langston Law Firm, 2012 Miss. LEXIS 249 (Miss. 2012).

In a pair of cases involving outside counsel retained by the Attorney General, the Mississippi Supreme Court held that outside counsel must be paid from the contingent fund established in the Attorney General’s office, or by funds appropriated by the legislature, rather than directly by defendants in the context of a settlement. In each case, the Attorney General retained outside counsel to pursue antitrust or bankruptcy claims. Settlements were reached with the corporate defendants. The defendants agreed to pay the state $50 million in one case, and $118.2 million in the other. In each case, the defendants directly paid the counsel retained by the Attorney General out of the funds it had agreed were due to the state. The state auditor sued, alleging that the settlement funds were public money and could not be paid to outside counsel.

The Mississippi Supreme Court held that once the settlement had been agreed to, the funds were public funds, and were not authorized to be paid to outside counsel. Miss. Code Ann. § 7-5-7 (Rev. 2002) authorizes two means of payment by the Attorney General to outside counsel:

The compensation of appointees and employees made hereunder shall be paid out of the attorney general's contingent fund, or out of any other funds appropriated to the attorney general's office.

Although the court held in each case that the outside counsel could not be paid from the settlement funds, the court stated,

We wish to make clear in this case that our opinion should not be read as calling into question either Retained Counsel's right to be paid or the validity of the Retention Agreement. Indeed, the Auditor has made no such challenge, nor has he argued that the Attorney General was prohibited, either from depositing the funds into his contingent fund and paying Retained Counsel, or from paying the attorney fees from funds appropriated to his office by the Legislature.

In partial dissent, Justice Pierce stated,

Beyond question, the better approach would have been to submit all of the settlement proceeds to the Attorney General, have him to deposit those settlement proceeds into his contingency account, and then write a check to Langston Law Firm for the fees earned for professional services. However that did not happen. To now require: (1) the Langston Law Firm to write a check to the Attorney General for $14 million, (2) the Attorney General to deposit that $14 million check into his contingency fund account, and (3) the Attorney General to write a $14 million check to the Langston Law Firm from his contingency account would, at best, be an inefficient and totally symbolic gesture.


Factors Giving Attorney General’s Opinion Persuasive Authority.

Five Corners Family Farm v. State, 173 Wn.2d 296 (Wash. 2012).

In a case involving withdrawal of groundwater for a large feedlot operation, defendants, whose ability to withdraw significant amounts of water had been challenged by competitors and environmental groups, argued that their withdrawal of the water fell within a statutory exception for stock watering, and the state Department of Ecology supported that view. Plaintiffs argued that the exception was limited to small amounts of water.

The state relied on an opinion of the Attorney General issued in 2005, interpreting the statute. The court thoroughly discussed the weight that should be given to an Attorney General opinion in Washington and what factors should be considered in analyzing an Attorney General opinion:

A formal attorney general opinion may be persuasive authority for one or more of at least three reasons. First, such opinions represent the considered legal opinion of the constitutionally designated "legal adviser of the state officers." . . . Second, we presume that the legislature is aware of formal opinions issued by the attorney general and a failure to amend the statute in response to the formal opinion may, in appropriate circumstances, be treated as a form of legislative acquiescence in that interpretation. . . . The weight of this factor increases over time and decreases where the opinion is inconsistent with previous formal opinions, administrative interpretations, or court opinions. . . . Third, where the opinion is issued in close temporal proximity to the passage of the statute in question, it may shed light on the intent of the legislature, keeping in mind, of course, that the attorney general is a member of a separate branch of government.

In this case, the Attorney General opinion was issued 60 years after enactment of the statute in question and was contrary to early administrative interpretations of that statute. Nor canthe legislature be said to have acquiesced in the Attorney General's interpretation because it subsequently established a working group to review the issue. Thus, in this case, “the attorney general opinion's force lies exclusively in the persuasiveness of the reasoning. We find much of the reasoning in the attorney general's 2005 opinion persuasive and have incorporated it in our analysis.”

Mississippi Legislation

State Agencies May Hire Outside Counsel Without Attorney General Approval

The Mississippi legislature has enacted, and the governor has signed, legislation that permits state agencies to retain their own counsel. The legislation, SB 211, amends sections of the Mississippi code that apply to the Attorney General’s office. The legislation establishes an Outside Counsel Oversight Commission, comprising the governor, the lieutenant governor and the secretary of state. The Commission must review and approve contingency fee contracts the terms of which exceed limits set out in the statute. The bill also requires the Attorney General to give seven days notice to state agencies of any “legal action” taken on their behalf unless irreparable injury to the state would result from such notice. The Attorney General is required to authorize the hiring of outside counsel by a state agency if 1) the Attorney General declines to represent the agency or 2) “there is a significant disagreement with the Attorney General as to the legal strategy to be used in the case; [and] the Outside Counsel Oversight Commission has approved the retention of outside counsel.”


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