The National Attorneys General Training & Research Institute
Recent Powers and Duties Decisions
Emily Myers, NAAG Antitrust Chief Counsel and NAGTRI Chief Editor
This is another in our series reporting on recent decisions from across the country affecting the powers and duties of state and territory attorneys general.
Authority to Sue. The attorney general of Arizona sued the Board of Regents of the state university system, alleging that the Board’s tuition-setting practices violated the Arizona Constitution's requirement that "the instruction furnished [at the university and all other state educational institutions] . . . be as nearly free as possible." The attorney general alleged that the Board had violated Arizona statutes by directing the universities in question to offer in-state tuition to students who were not "lawfully present" for purposes of eligibility for in-state tuition, and thus failing to collect monies accruing to the State and causing the illegal payment of public monies.
The Board argued that the claims should be dismissed because, among other reasons, the attorney general lacked authority to initiate the lawsuit under the Arizona Supreme Court’s decision in Ariz. State Land Dep't v. McFate. In McFate, the Arizona Supreme Court examined A.R.S. § 41-193(A)(2), which provides, “At the direction of the governor or when deemed necessary by the attorney general, [the attorney general may] prosecute and defend any proceeding in a state court other than the supreme court in which the state or an officer thereof is a party or has an interest.” The Arizona Supreme Court interpreted the word “prosecute” in this statutory provision narrowly, and held that the attorney general "may initiate proceedings on behalf of the State . . . but these instances are dependent upon specific statutory grants of power."
The trial court dismissed the attorney general’s action on the grounds that the attorney general did not have authority to file the suit, and the attorney general appealed. The attorney general argued that an Arizona statute (A.R.S. § 35-212) authorizes the attorney general to “bring an action . . . to . . . [e]njoin the illegal payment of public monies” and "[r]ecover illegally paid public monies.” The court of appeals held that collecting tuition does not constitute a “payment” under A.R.S. § 35-212. Because the complaint did not cite to any other statute providing the attorney general with authority to commence the suit, the court affirmed the district court’s dismissal, applying the McFate reasoning.
In a special concurrence, however, the three appellate judges thoroughly reviewed McFate and urged that it be overruled by the Arizona Supreme Court. The judges stated, “McFate's interpretation of “prosecute” in A.R.S. § 41-193(A)(2) appears to be flawed. The decision overlooks substantial evidence of the plain meaning of the phrase in 1953 [when the statute was enacted].”
The concurrence analyzed Arizona law before McFate and pointed out, “Common usage before and around the time of the 1953 amendment suggests that the term ‘prosecute’ included civil actions and contemplated both the initiation and the continuation of legal proceedings.” The McFate court acknowledged this, but found policy-based concerns about the role of the attorney general supported a more limited interpretation. The concurring judges concluded with an extensive analysis of decisions and interpretations of the term “prosecute” as used in the statute, and noted, “It is up to the Arizona Supreme Court to determine whether those concerns continue to support McFate's interpretation and whether legislative acquiescence and stare decisis caution against overruling McFate.” State of Arizona ex rel. Brnovich v. Arizona Board of Regents, No. 1 CA-CV 18-0420 (Ariz. Ct. App. Aug. 20, 2019).
Attorney General Qualifications. Kentucky statutes allow any qualified voter to file suit to challenge the bona fides of any candidate in a Kentucky election. Plaintiff filed suit, alleging that a candidate for Kentucky Attorney General did not possess the qualifications required by Kentucky’s constitution and statutes. The candidate was admitted to the Kentucky Bar in October 2011. He subsequently clerked for a federal judge for two years, during which time he was prohibited from the private practice of law. He then practiced law in a firm, became legal counsel to the United States Senate Majority Leader, and returned to private practice before becoming a candidate for attorney general of Kentucky.
The constitution of Kentucky states, “[t]he Attorney-General shall have been a practicing lawyer eight years before his election.” Ky. Const. §92. Plaintiff argued that the candidate did not satisfy this requirement because “his service as a federal judicial law clerk does not constitute the practice of law.”
The court reviewed a 1937 Kentucky Supreme Court decision that defined “practicing law” as “not limited to the conduct of cases in courts. . . . [I]t embraces the preparation of pleadings, and other papers incident to actions and special proceedings and the management of such actions and proceedings on behalf of clients before judges and courts, . . . the preparation of legal instruments of all kinds, and, in general, all advice to clients. . .  The Kentucky Supreme Court Rules define the practice of law as “any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court . . .” and state ‘[l]awyers may engage in the practice of law in Kentucky . . . as employees of a United States government agency or department.”
Turning to case law, the court described an unpublished decision about a prior candidate for attorney general who had been state auditor of public accounts, which the plaintiff in that case argued did not qualify as practicing law. The trial court held that the candidate was qualified because he had been licensed to practice law for the requisite eight years. The case was appealed, and the appellate court upheld the trial court, agreeing that the state constitution established a broad standard, which was satisfied by someone who has been licensed to practice law for that time period. The appeals court stated, “The constitution establishes only the broadest qualifications. Evaluation of the character and experience of candidates is left to the electorate.”
The court applied the reasoning of these cases and found that because the candidate would have been a licensed lawyer for more than eight years, he was qualified to run for attorney general. The court also held that the two years as federal law clerk may count toward the eight year requirement in the Kentucky constitution. During both those years and his time as legal counsel in the Senate, his positions involved “service rendered involving legal knowledge or legal advice” as specified in Kentucky Supreme Court Rule 3.020. Jackson v. Cameron, No. 19CI-5702 (Ky. Cir. Ct. Jefferson Cty. Oct. 9, 2019)
Parens Patriae Standing. The Maryland attorney general sued 65 defendants over MTBE contamination of Maryland’s waters, alleging common law tort claims and violations of the state’s environmental statutes. The attorney general sued as parens patriae, as trustee of the state’s natural resources, and under the Maryland environmental statutes. The state sought compensatory and punitive damages, costs for testing and cleanup, and an injunction requiring the defendants to test and treat drinking wells contaminated by MTBE.
In the context of a motion to dismiss, the federal district court discussed the state’s parens patriae standing to bring a trespass claim. In its complaint, the state alleged damages “upon the State's possessory interest in properties it owns, the possessory interest of its citizens in properties they own which the State asserts here on their behalf in its parens patriae capacity, and the State's possessory interest as the trustee of the State's natural water resources.” The defendants argued that the state cannot recover in trespass for the alleged MTBE contamination of properties that it does not exclusively possess, and the state responded that it is suing “both as a quasi-trustee of Maryland’s water resources and as a parens patriae representative of its citizens' water ownership interests.”
The court stated that the widespread contamination of the state’s waters is an injury that is properly redressed in parens patriae. However, proceeding in parens patriae does not “give the State ’exclusive possession’ of contaminated properties within its borders- even those it does not own—such that it may recover for trespass to those areas.” The court noted that either the state’s quasi-trustee interest in its natural resources, or its parens patriae authority, could give rise to a public nuisance claim, which would not require exclusive possession. Maryland v. Exxon Mobil, 2019 U.S. Dist. LEXIS 150177 (D. Md. Sept. 4, 2019).
Attorney General’s Restitution Claims Not Blocked by Draft Settlement with Private Class. After a two-year investigation, the Minnesota Attorney General’s Office in July 2017 filed suit in Minnesota state court against CenturyLink, a telecommunications company, “to enforce Minnesota’s consumer protection laws and its parens patriae authority to vindicate the State’s sovereign and quasi-sovereign interest to protect the economic welfare of Minnesota’s citizens.” A private action covering the same claims was filed in California and the case was transferred to the multidistrict litigation (MDL) court in Minnesota in October 2017.
Plaintiffs’ attorneys notified the court that a tentative settlement had been reached, but no final terms had been agreed to, and the state was not involved in those settlement discussions. In the state’s case, the trial is scheduled to begin in March 2020. In the MDL case, dispositive motions were still pending, the class had not been certified, and no settlement had been presented to the court. Shortly after this, CenturyLink filed a motion seeking to enjoin the attorney general’s “duplicative consumer restitution claims” in the state action. In response, the state sought a continuance of the motion until 30 days after CenturyLink filed for preliminary approval of the settlement. The court granted the state’s motion.
The court found that the state had good cause for a continuance. “Both the State and the Court need to be able to review the specific terms of the proposed settlement agreement in order to cogently argue and decide CenturyLink’s motion for a temporary injunction.” The court noted that courts consider stays of parallel proceedings, particularly “those prosecuted by states on their own behalf,” after motions for approval of the class settlement. There are few exceptions to this rule.
The court held
[T]he State is making the request for a continuance in good faith to enable it to meaningfully respond to the motion for an injunction and to protect its sovereign and quasi-sovereign authority to pursue the procedurally advanced state action and vindicate the interests of the citizens of the State of Minnesota. There is no authority for the proposition that a putative class’s undisclosed, potential settlement justifies interfering with an ongoing, procedurally advanced government enforcement action.
In re: CenturyLink Sales Practices and Securities Litigation, MDL No. 17-2795 (D.Minn. Aug. 29, 2019).
D.C. Federal Court Does Not Have Jurisdiction Over New York Attorney General. The New York legislature enacted a statute, the TRUST Act, which authorizes the chairpersons of certain committees of the U.S. Congress to request the state tax returns of the President of the United States. The president filed an emergency action against the New York attorney general and tax commissioner as well as the House Ways and Means Committee under the All Writs Act to prevent the disclosure of his tax returns; he also filed suit to block release of his returns to the House of Representatives. The President argued that any request would violate Article I of the Constitution, the Rules of the U.S. House of Representatives, and the First Amendment. The court first addressed the questions of personal jurisdiction and venue over the New York defendants.
The President conceded that the court did not have general jurisdiction over the New York defendants. The D.C. long-arm statute, which is applicable here, authorizes specific jurisdiction “over a person, who acts directly or by an agent, as to a claim for relief arising from” certain contacts that person may have with the forum. Those contacts include transacting business in the District of Columbia, causing tortious injury in the District by an act in the District, or causing tortious injury in the District by an act outside the District if the party either 1) regularly does business there, 2) engaged in any other persistent course of conduct there, or 3) derives substantial revenue from goods used or consumed or services rendered there. Under D.C. Circuit law, the District’s long-arm statute does not apply to states themselves.
The court rejected the president’s argument that corresponding with a congressional committee and sending information to that committee would constitute “transacting business” in the District. The court also noted that the New York attorney general did not have a role under the statute in responding to a request from Congress. Although the attorney general has engaged in litigation activity in the District, the president’s alleged injury did not arise from that litigation, so it does not provide jurisdiction under the long-arm statute. Nor did the attorney general take an action inside or outside of the District that would cause injury to the president inside the District, even if litigation activity could be characterized as a “persistent course of conduct.”
In dicta, the court noted that “Exercising jurisdiction over New York state officials would also raise state sovereignty and federalism concerns.” The court observed that other courts have been “cautious” when considering whether plaintiffs may bring state officials into federal court in another state to litigate the constitutionality of the original state’s statutes. Such jurisdiction has been held to violate the Due Process clause. Trump v. Committee on Ways and Means, No. 1:19-cv-02173 (D.D.C. Nov. 11, 2019).
State Cannot Delay Counties’ Opiate Litigation. The Ohio Attorney General petitioned for a writ of mandamus compelling a district court to dismiss or postpone a consolidated “bellwether” trial in a multidistrict litigation (MDL) brought against manufacturers and distributors of opioids by Ohio counties and municipalities. The attorney general argued that, as a sovereign, the state has sole authority to assert parens patriae claims for harms to its citizens’ health and welfare. The attorney general argued that the counties’ claims went beyond direct injury to the counties and sought more expansive relief that duplicates the relief being sought by the state in its own lawsuits against the same defendants.
The Sixth Circuit noted that the state had not moved to intervene in the MDL proceeding to raise the issues on which it now seeks mandamus. The state argued that it would have then been required to subject itself to federal jurisdiction and pursue its claims in federal, rather than state, court. According to the Sixth Circuit, the Supreme Court will find that a state has waived its constitutional protection only if there is express language to that effect. The court also observed that that state did not object when the counties’ cases were removed and consolidated in the MDL, and that the state has taken some actions in the MDL court, including moving for a protective order and opposing certification of a negotiation class. The parties have “conducted extensive discovery, filed numerous pleadings and, in some cases, reached settlements.” The court declined to enter a writ of mandamus. In re: National Prescription Opiate Litigation, No. 19-3827 (6th Cir. Oct. 10, 2019).
Attorney General Control of Litigation. Planned Parenthood sued several Wisconsin officials, including the attorney general, in federal court, alleging that various Wisconsin laws and regulations unnecessarily require the participation of a physician during various stages of abortion services, violating the constitutional rights of both providers and patients. The state defendants denied that these requirements violate plaintiffs’ rights.
The Wisconsin legislature sought to intervene, either as a matter of right or by permission. Their motion was opposed by all parties, and the district court declined to allow their intervention. After determining that there was no statutory basis for intervention as of right (under 28 U.S.C. §2403(b)), the court noted that FRCP 24(a) does recognize a right to intervene when “(1) the motion to intervene is timely filed; (2) the proposed intervenors possess an interest related to the subject matter of the action; (3) disposition of the action threatens to impair that interest; and (4) the named parties inadequately represent that interest.”
In this case, the first element was satisfied. Turning to the question of the intervenor’s interest, the court distinguished between the interest required for Article III standing and that required for intervention in the 7th Circuit. The interest required for intervention must be unique to the proposed intervenor. In this case, the state defendants’ interest—defending the constitutionality of challenged statutes—is the same as that of the legislature.
The court then addressed the third factor, the threat to the intervenor’s interest. The legislature argued that a court decision in favor of the plaintiffs could nullify the “majority votes in support of the challenged measures.” The court cited 7th Circuit precedent that legislators have standing to challenge measures that diminish the effectiveness of their votes, but the decision of a court that a statute is unconstitutional is not nullifying a legislator’s votes. The legislature also argued that “an adverse decision in this case could have an impact on the legislature’s ability to pass abortion-related legislation in the future.” The court observed, “While any decision in this case necessarily will be limited to the challenged regulations, any attempt by the legislature to reenact the same regulations would be thwarted. However, the desire to reenact invalidated legislation hardly serves as a cogent basis for intervening.”
The court then addressed the question of whether the legislature is inadequately represented by the attorney general. Past Seventh Circuit cases have held, “when the representative party is a governmental body charged by law with protecting the interests of the proposed intervenors, the representative is presumed to represent their interests adequately unless there is a showing of gross negligence or bad faith.” The court noted that under Wisconsin law, the attorney general “has the duty by statute to defend the constitutionality of state statutes. . . . Nothing about recently-enacted Wis. Stat. §803.09(2) strips the attorney general of that obligation, nor have the proposed intervenors offered evidence that the attorney general does not intend to fulfill this responsibility.”
The legislature argued that the attorney general might not litigate the case as ardently as the legislature because, among other things, he received donations from Planned Parenthood during the election, he withdrew Wisconsin from two amicus briefs defending abortion regulations in other states unrelated to the ones at issue here, and he chose to answer the complaint, rather than file a motion to dismiss. The court held “this litany fails to demonstrate (or even come close to demonstrating either gross negligence or bad faith.” The court also noted that the same attorneys who defended the regulations under the prior attorney general are also defending this action.
The court also declined to exercise its discretion to allow permissive intervention, for the same reasons described above. The court observed that the legislature could file amicus briefs, could renew its motion to intervene if the attorney general declined to defend the regulations in the future, or could appeal. Planned Parenthood of Wisconsin v. Kaul, 384 F. Supp. 3d 982 (W.D. Wisc. 2019).
The legislature immediately appealed to the U.S. Court of Appeals for the Seventh Circuit. Because the Supreme Court’s decision in Virginia House of Delegates v. Bethune-Hill had been decided after the district court’s decision, the Wisconsin legislature had confirmed to the court that it was suing as an agent of the state itself, rather than as the legislature. The court of appeals affirmed the district court’s denial of the motion to intervene, holding that even assuming the legislature had an interest that might be impaired, the attorney general is adequately representing this interest.
The court reiterated that “when the representative party is a governmental body charged by law with protecting the interests of the proposed intervenors,” only gross negligence or bad faith can demonstrate inadequacy of representation. The legislature conceded that this should be the standard when a private party is seeking intervention, but argued that the state of Wisconsin has made a policy choice, through its statutes, that the attorney general should not be the exclusive representative of the state’s interests. The legislature cited Bethune-Hill as support for its argument, since the Supreme Court in that case held that the Virginia legislature did not have standing because Virginia had chosen to “speak as a sovereign entity with a single voice.”
The court of appeals held that the situation in Bethune-Hill differed from the situation here because the question there was whether the Virginia legislature “had authority to displace Virginia’s Attorney General as representative of the state,” rather than represent the state in parallel with the attorney general. The court noted that every decision cited by the Wisconsin legislature “involves a situation in which a legislature intervened once the governmental defendant’s default representative had dropped out of the case. . . . The Legislature points us to no authority granting a state—or any party for that matter—the right to have two separate, independent representatives within the same suit.”
The court of appeals also addressed the question of representation of the state itself, affirming the district court’s application of the “bad faith or gross negligence” standard. Noting that the legislature “has the unenviable task of convincing a court that the Attorney General inadequately represents Wisconsin, despite his statutory duty,” the court held,
If the Legislature were allowed to intervene as right, then it and the Attorney General could take inconsistent positions on any number of issues beyond the decision whether to move to dismiss, from briefing schedules, to discovery issues, to the ultimate merits of the case. The district court would, in that situation, have no basis for divining the true position of the State of Wisconsin on issues like the meaning of state law, or even for purposes of doctrines like judicial estoppel.
The court agreed with the legislature that the Wisconsin attorney general’s authority is governed by state law and subject to the legislature’s control, and noted that the state could require the attorney general to withdraw and allow the legislature to take over. But, in this case, the legislature wants to litigate alongside the attorney general, which is “not an exercise of the State’s undoubted power to control the Attorney General, it is an attempt to control the proceedings in the court. We have no right to opine whether this law can have that effect on a state court, but even the Legislature concedes it cannot on a federal one.”
The court of appeals also voiced its concern about the effect of the legislature’s position on judicial administration. “Under the Legislature’s rule, a state could split its voice among as many entities as it wishes, and each would be able to intervene if it could meet the minimal standard that its interest may be inadequately represented. . . . Perhaps a state could even designate its individual legislators as agents and thereby flood a district court with a cacophony of voices all purporting to represent the state.”
Finally, the court of appeals affirmed the district court’s denial of permissive intervention for the legislature. Permissive intervention is discretionary in the trial court and is rarely overturned. The court of appeals held, “The court weighed the various parties’ interests and found that the value the Legislature added to the Attorney General’s representation of the State was outweighed by the practical complications that could have resulted from the State’s having two representatives at the same time.”
Planned Parenthood of Wisconsin v. Kaul, __ F.3d __, 2019 U.S. App. LEXIS 33361 (7th Cir. Nov. 7, 2019).