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NAAGazette

Attorney General Powers and Duties Update

Emily Myers, Antitrust and Special Projects Counsel

Emily Myers, Antitrust and Special Projects Counsel

This is the first in an occasional series that will highlight recent cases and legislation that affect the powers and duties of state Attorneys General offices. During the past six months, there have been several cases that addressed the powers of Attorneys General.

Mandamus Action Not Appropriate to Compel Attorney General Opinion–Arizona.

Arizona voters approved Proposition 200, which was codified into law. Proposition 200, among other things, “require[d] agencies of the state and local governments that administer “state and local public benefits that are not federally mandated” to verify the immigration status of applicants for benefits and report any discovered violations to federal immigration authorities.” The Attorney General issued an opinion, at the request of a state agency head that interpreted “state and local public benefits” to include only those that qualify as “state and local benefits programs” under federal law. The voters filed a mandamus action against the Attorney General, alleging that he had abused his discretion by issuing an erroneous legal opinion. The court of appeals rejected this argument, stating that permitting mandamus actions in this situation would “be an inappropriate usurpation by the courts of responsibility assigned to the Attorney General and, in our view, a violation of the separation of powers.” The court also declined to order the Attorney General to withdraw his opinion or to direct state agencies to act in a certain way, because there is no such obligation under the state’s Constitution and statutes, and because the Arizona Attorney General’s powers come solely from Constitutional and statutory, not common, law. With respect to the declaratory judgment action, the court held that the Attorney General was not a proper party because the Attorney General’s opinion is advisory only and the Attorney General cannot compel state agencies to act. Yes on Prop. 200 v. Napolitano, 215 Ariz. 458, 160 P.3d 1216 (Ariz. Ct. App. Div. 1, 2007).

Ability of Governor and State Agency to Bring Suit–Mississippi.

The Governor and the state Medicaid agency sought to overturn a trial court order which had directed that $20 million per year from the state’s settlement with the tobacco companies be provided to a private, non-profit entity. The Attorney General declined to bring the case. The court held that the Attorney General

“is indeed the attorney for the State to represent the people's interest[,]”... [i]f an Attorney General declines to file a suit referred to him by a state agency, where the matter is of serious concern to state government, then that agency ... is at least entitled to have some court pass upon whether it should have its full day in court.” citing Frazier v. State By and Through Pittman, 504 So.2d 675, 692 n. 16 (Miss.1987). Thus, “[t]he Attorney General's refusal to represent the agency does not deprive the court of the authority to keep jurisdiction and entertain the suit.” Id. However, if the suit is outside the official concern of the agency, the court unquestionably has the authority to dismiss the suit.”

Hood ex rel. State Tobacco Litigation v. State by Barbour, 958 So. 2d 790 (Miss. 2007).

State Not Citizen for Diversity Purposes When Pursuing Price-Gouging Claims–Kentucky.

The Attorney General of Kentucky filed suit in state court against Marathon Oil, an out-of-state company, alleging violations of the state’s price-gouging statute. Although a state is not a citizen of any state for purposes of diversity jurisdiction, the defendant sought to remove the case to federal court, arguing that the Attorney General was actually representing individual Kentucky consumers, rather than the state. The court determined that, “When a state official is a party to a proceeding over which diversity jurisdiction is alleged, whether the respective state is itself the real party in interest is a question to be determined from the essential nature and effect of the proceeding.” citing Nuclear Engineering Co. v. Scott, 660 F.2d 241, 250 (7th Cir.1981). In the complaint, the Attorney General sought: 1) a declaration that the defendants had violated the KCPA and the Anti-Price Gouging Act; 2) an injunction prohibiting the defendants from violating the Anti-Price Gouging Act; 3) civil penalties against the defendants; and 4) disgorgement and restitution of all amounts received by the defendants in violation of the KCPA. The court concluded,

The declaration, injunction, and civil penalties will benefit all Kentucky consumers not just a particular set of consumers. The Attorney General brings this action pursuant to KRS § 367.190 and KRS § 367.990, which specifically authorize the Attorney General to bring actions “in the name of” or “on behalf of” the Commonwealth. While the Attorney General does also seek restitution on behalf of particular consumers, this is only one aspect of the wide-ranging relief sought, the substantial portion of which will benefit all Kentucky consumers. Viewing the complaint as a whole, the state is the real party in interest in this matter.

Kentucky ex rel. Stumbo v. Marathon Petroleum Co., 2007 U.S. Dist. LEXIS 74117 (E.D. Ky. Oct. 3, 2007).

Attorney General Has Discretion to Defend State Supreme Court Justice–WA.

A state Supreme Court justice was accused of misconduct and requested legal representation by the Attorney General’s office in connection with the proceedings of the Commission on Judicial Conduct (Commission) and while prosecuting the appeal from those findings. The Attorney General rejected the Justice’s request and the Justice brought a declaratory judgment action seeking reimbursement for his attorneys’ fees. The Commission later ruled that the Justice had violated the Canons of Judicial Conduct and the Supreme Court upheld the Commission's ruling. The Justice argued that the applicable statutes required the Attorney General to defend any state officer who was acting in the course of his duties, without regard to whether there was malfeasance or misfeasance on the part of the state officer. The court of appeals determined that the state’s Ethics in Public Service Act applied to proceedings of the Commission on Judicial Conduct. That Act provides that the Attorney General's duty to defend the accused state officer or employee does not commence until and unless the ethics board determines, after reviewing the facts, either with or without a hearing, that there is not reasonable cause to believe that the officer or employee has violated the Act. This statutory scheme clearly assumes discretion on the part of the Attorney General to determine when the state will represent an officer.

Attorney General Not Required to Produce Documents from State Medicaid Agency in Antitrust Case–Multistate.

Thirty-five states brought an antitrust case against two pharmaceutical companies, alleging that the companies had conspired to prevent the marketing of a generic version of a contraceptive, Ovcon 35. Defendants sought discovery from the plaintiff states, through their Attorneys General, concerning purchases of oral contraceptives by state Medicaid agencies. The plaintiff states argued that the Attorneys General were not representing the state Medicaid agencies, but had instead filed as parens patriae, seeking injunctive relief to protect the general economies of their states. The magistrate judge held that the state Medicaid agencies were not under the control of the Attorney General.

Although the Medicaid agencies may be subject to control by their Governors, the State Attorneys General are not subject to discipline or removal by their Governors and bring suit under their own authority. . . In the view of the Court, such a relationship between Attorney General and Governor would significantly lessen the ability of the Attorneys General to enlist their Governors to direct the Medicaid agencies to produce documents.

The magistrate judge also concluded that the defendants did not make the required showing that in each plaintiff state, “the office of the Attorney General and the Medicaid agency relate to one another such that, for discovery purposes, they may be treated as the same entity.” The court even declined to order discovery from the Attorneys General of Alaska and the District of Columbia, although the Attorney General is appointed by the executive in each of these jurisdictions, because the defendants did not make sufficient showing that the Attorney General and the state Medicaid agency were interrelated. Colorado v. Warner Chilcott Holdings, No. 05-2182 (CKK), Magistrate Memorandum Order (D.D.C. May 8, 2007).

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