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Decisions Affecting the Powers and Duties of Attorneys General

Emily Myers, Antitrust Counsel

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.

California

Attorney General Responsible for Ballot Initiative Language

Howard Jarvis Taxpayers Ass’n v. Bowen, 192 Cal. App. 4th 110 (Cal. App. 3d Dist., 2011).

California’s Political Reform Act (enacted in 1974) requires that the Attorney General prepare the official summary of the bill and the ballot label and title for ballot initiatives. The Political Reform Act can be amended in two ways: 1) to further its purposes if the amendment is passed in each house of the Legislature by a two-thirds vote; or 2) by the enactment of a statute that is then approved by the electorate. In 2008, the California legislature enacted the "Safe, Reliable, High-Speed Passenger Train Bond Act for the 21st Century," which was to be submitted to voters as Proposition 1A for the Nov. 4, 2008 general election. As part of the Bond Act, the Legislature “specified the ballot label, title and summary to be used and precluded the Attorney General from revising the language other than to include a financial impact statement.” Prior to the election, an anti-tax group sought a writ of mandate directing the secretary of state to request an impartial ballot title and summary from the Attorney General. The trial court declined to issue the writ. The ballot initiative passed, and the plaintiffs filed an appeal.

The appellate court first determined to exercise its discretion to hear the appeal, based on past holdings that “the appellate review of disputes concerning election procedures may be appropriate if the contentions raised are of general public interest 'and are likely to occur in future elections in a manner evasive of timely appellate review.'” The legislature argued that the language of the statute, “that, for ’each state measure to be voted upon,’ the ballot must contain "[t]he official summary prepared by the Attorney General" was merely descriptive, rather than prescriptive, and did not require that the Attorney General draft the summary. The plaintiffs argued that the statute should be given its plain meaning.

The appellate court held,
The plain, commonsense meaning of these words is that the Political Reform Act intended that the Attorney General have the exclusive authority to prepare the ballot summary. This construction of the statute is consistent with the purposes of the Political Reform Act which, among other things, are to promote impartiality and eliminate conflicts of interest in the performance of governmental duties.

The court also held that allowing the legislature to write the ballot title “would defeat the purpose of the Political Reform Act to promote impartiality and eliminate conflicts of interest in the performance of governmental duties,” and might result in a situation where the ballot title could be inconsistent with the official ballot summary prepared by the Attorney General. Because the legislature’s actions were at odds with the Political Reform Act, they were not in furtherance of the purposes of the statute, as required for amendment of the Act. Therefore, the court held that the legislature may not prepare the summary and title for ballot initiatives.

Connecticut

Attorney General Qualifications

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

The Connecticut Supreme Court issued a decision analyzing qualifications for the office of Attorney General. The court held that a candidate [Susan Bysiewicz] 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.” General Statutes § 3-124 (enacted by Public Act 191, 1897)

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 ten 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.” The Republican Party appealed the court’s ruling.

The Connecticut Supreme Court initially issued a single-page ruling, holding that Bysiewicz’s was not qualified to serve as Attorney General of Connecticut. The court has now issued its detailed ruling.

After reviewing the facts, the court first discussed the legislative language and history. When Public Act 191 was enacted, non-attorneys performed many functions that attorneys do now, except for appearing in court on behalf of clients.

The fact that, when P.A. 191 was enacted, nonattorneys could engage in any conduct that attorneys could engage in except appearing in court further supports the interpretation that the requirement of § 3-124 that the attorney general have ‘‘ten years’ active practice at the bar’’ meant that the attorney general must have had some experience in active practice in court, and that the legislature wanted to ensure that the attorney general would have both the legal status required to appear in court on behalf of state officers and agencies—namely, admission to the bar—and the practical experience to litigate effectively.

Because Bysiewicz had no experience representing clients in court, the court concluded that she did not fulfill the requirements of § 3-124 The court also rejected the lower court’s holding that the practice of law did not require any particular degree of frequency or intensity, stating

Although the determination as to whether an attorney has engaged regularly in the practice of law as the primary means of earning a livelihood may be a matter of judgment, and doubts must be resolved in favor of the person seeking the office, we cannot conclude that the legislature intended that a person with that minimal degree of experience in the practice of law would be qualified to serve as the attorney general.

The court then turned to Bysiewicz’s argument that her duties as secretary of state, including “collaborat[ing] with the attorneys on her staff to formulate answers to questions from local election officials regarding the proper conduct of elections [and] issu[ing] regulations, declaratory rulings, instructions and opinions on issues of election law . . .” constituted active practice at the bar of the state, as required by the statute.

The court found that previous secretaries of state had not been attorneys, and had performed similar functions; the Attorney General is by statute the only officer authorized to perform legal services for the state; even if some of her actions were legal in nature, there were not enough of them to indicate that she had “engaged regularly in the practice of law as the primary means of earning a livelihood;” and she did not have an attorney/client relationship with the state or its citizens. The court therefore held that her activities did not constitute ‘‘ten years’ active practice at the bar of this state.’’

Finally, the court rejected Bysiewicz’s argument that the statute was unconstitutional, because it conflicts with Art. 6, §10 of the state constitution, which provides “that [e]very elector who has attained the age of eighteen years shall be eligible to any office in the state . . .” The court found that when the state constitutional provision was enacted, there was no office of Attorney General. The Attorney General became a constitutional officer in 1970, but the constitutional provision creating the office did not include any additional qualifications. The court inferred that the legislature wanted to preserve the statutory requirements then in existence. Noting that the office’s duties have become more wide-ranging and complex over the years, the court concluded, “In short, the continuing importance of the office and its ever expanding role as the state’s legal advocate weigh in favor of a conclusion that the legislature intended to retain the requirement of § 3-124 that the office be overseen by an attorney with substantial practice experience.”

Attorney General Qualifications

Dean v. Jepsen, No. CV 10 6015774 (Ct. Super. Ct., Hartford Dist., Nov. 3, 2010)

Following the Supreme Court’s decision, the full text of which was issued shortly before the November 2010 general election, the Republican candidate for Attorney General, Martha Dean, challenged the qualifications of the Democratic candidate, George Jepsen. Dean sought a declaratory judgment and sought to enjoin the secretary of state from certifying the results of the election. Jepsen argued that she had no standing to seek a declaratory judgment action because no injury would occur until he was elected, when she could bring a quo warranto action.

The court addressed the issue of Dean’s standing to bring the claim, stating, “There are two distinct ways in which a party can demonstrate that it has standing to bring an action. Standing is (either) established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved." The court concluded that none of Connecticut’s election statutes allow plaintiff’s claims because they refer to challenges to rulings by election officials, none of which have ruled here. A quo warranto action is not ripe until a candidate is elected.

Turning to “classical” aggrievement, the court analyzed the Supreme Court’s decision in Bysciewicz. In that case, the Connecticut Supreme Court ruled that plaintiff did have standing because Bysciewicz had an interest in avoiding the effort and expense of an election if she would not be able to serve as Attorney General. The court also inferred that the Supreme Court found a public interest in avoiding confusion and disruption in the election process. In this case, neither of these factors argued for the plaintiff. The campaign had been fully waged, and the election was just days away, so the candidate had no interest in avoiding effort and expense. Also, the proximity of the election increased the likelihood of “confusion and disruption.” The court also held that the plaintiff’s claim for injunctive relief was barred by sovereign immunity of the secretary of state.

New Hampshire

Attorney General’s Parens Patriae Authority

New Hampshire v. Hess Corporation, 2011 N.H. Lexis 9 (N.H. 2011).

In 2003, New Hampshire filed suit in state court against several gasoline suppliers, refiners and chemical manufacturers (MTBE defendants) seeking damages for groundwater contamination allegedly caused by MTBE. The case was removed, and then remanded. The New Hampshire Supreme Court held that the state had parens patriae authority to bring suit against the MTBE defendants on behalf of the people of New Hampshire. The state sought to recover remediation costs for both public water systems and private wells, arguing that it had such authority as public trustee of the state’s water and as parens patriae for its citizens. The defendants challenged the state’s authority to recover damages for testing and treatment of private wells.

The court first noted the difference in the two doctrines. The public trust doctrine provides that the government holds public lands, waters and other natural resources in trust for the benefit of its citizens. The state can recover damages for natural resources owned and held in trust by the state. The parens patriae doctrine provides standing for the state to bring a claim, but does not, in itself, provide a cause of action, but “may provide a state with standing to bring suit to protect a broader range of natural resources than the public trust doctrine because it does not require state ownership of such resources.” In this case, the court had to analyze the “scope of the State's standing and whether the specific types of damages that the State requests are sufficiently ‘apart from the interests of particular private parties.’”

The court held,
We agree with the defendants that not all potential damages related to MTBE contamination in New Hampshire waters can properly be recovered by the State in its capacity as parens patriae. . . . Nonetheless, the fact that MTBE is detected in a privately owned well does not necessarily preclude the State from pursuing damages for the costs of investigating, monitoring, treating, remediating, replacing, or otherwise restoring such wells.

The court remanded the case to the trial court for determination of whether the state has alleged injury to a substantial segment of privately owned wells; whether the alleged injuries to those wells are speculative in nature, whether there is “community-wide risk” that goes beyond risk to private well owners; and whether individual or class-action lawsuits by private well owners are possible.

Legislatures Seek to Direct Attorney General Lawsuits

Several state legislatures, including Montana and New Hampshire, are considering legislation directing their Attorneys General to join in lawsuits challenging the Patient Protection and Affordable Care Act [P.L. 111 – 148]. New Hampshire Attorney General Michael Delaney recently testified before the New Hampshire House of Representatives State Federal Relations and Veterans Affairs Committee in opposition to HB 89, “An Act requiring the attorney general to file lawsuits challenging the Patient Protection and Affordable Care Act and the United States Environmental Protection Agency's cap and trade program.”

Attorney General Delaney described the New Hampshire Attorney General as independent, and testified that this bill would “change the historical, time-tested role of the attorney general in our state government and turn the Attorney General's Office from an independent department of the executive branch, into a political rubber stamp of the Legislative majority.” Attorney General Delaney reviewed the enactment of the separation of powers clause in the New Hampshire Constitution, noting that “the Framers intended that Article 37 would protect these new departments from legislative usurpation.” Attorney General Delaney concluded by noting that if the legislature could order the Attorney General to join the federal healthcare lawsuit, the legislature could also compel him to “commence or withdraw criminal prosecutions by similar legislative mandate.”

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