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Decisions Affecting the Powers and Duties of Attorneys General

By Emily Myers, NAAG Antitrust Counsel & Powers and Duties 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 and territorial Attorneys General.

Florida

Attorney General Has No Independent Right to Appeal

Bondi v. Tucker, 2012 Fla. App. LEXIS 11875 (Fla. Ct. App. July 24, 2012)

The Florida Attorney General represented the state Department of Corrections (DOC) in a case challenging language in the budget legislation funding DOC that required privatizing of some correctional facilities. The trial court held that the language was unconstitutional and enjoined DOC from implementing it. The DOC secretary did not appeal. The Attorney General filed an appeal “in her capacity as Attorney General of the State of Florida” on the last day for filing.

After reviewing the many Florida decisions in which only parties were permitted to appeal, and noting that this limitation is necessary so that the public may rely on a decision as final and dispositive, the court turned to the Attorney General’s argument that she had power to appeal the case under Fla. Stat. §16.01(4), which provides that the Attorney General "[s]hall appear in and attend to, in behalf of the state, all suits or prosecutions, civil or criminal or in equity, in which the state may be a party, or in anywise interested, in the Supreme Court and district courts of appeal of this state." The court “acknowledge[d] and affirm[ed] the Attorney General's "discretion to litigate, or intervene in, legal matters deemed by him [or her] to involve the public interest . . . and [that] his [or her] standing . . . cannot be challenged or adjudicated."[1] However, the court held “But the Attorney General did not exercise her "discretion to litigate" in the circuit court proceedings, and never sought intervention here or below.”

The court explained that past Florida decisions have permitted the Attorney General to intervene for the purpose of arguing the constitutionality of a statute. In this case, however, the Attorney General did not intervene. The court stated,

Intervention as a party would have supplied a fully adequate remedy. The Attorney General could have intervened in the proceedings below, participated as an intervenor (or even have intervened post-judgment), and then as a party in the trial court taken an appeal. Her right to intervene as a party below was clear. [citing State ex rel. Shevin v. Kerwin, 279 So. 2d 836, 837-38 (Fla. 1973)]. She had an adequate remedy at law.

In his concurrence, Judge Swanson said, “This case does not serve as precedent to limit or curtail the power of the Attorney General. It is a well-settled principle of common law -- a principle embodied by statutes -- that the Attorney General has broad authority to represent the people of Florida. Nonetheless, the Attorney General has to follow the procedural rules; something she failed to do here.” <

Idaho

Attorney General May Challenge Constitutionality of State Statute

Wasden v. State Board of Land Commissioners, 280 P.3d 693 (Id. 2012).

Idaho’s Board of Land Commissioners (of which the Attorney General is a member) is the trustee for state “endowment” lands, the revenues from which are to be used to support public schools and other public institutions. Several hundred “cottage sites” (land leased for residential purposes) are on endowment lands. In most situations, if two or more people seek to lease endowment land, the state Department of Lands is required to hold an auction and award the land to the highest bidder. However, a state statute specifically exempted cottage sites from this auction requirement. The Attorney General filed an action to enjoin the Board from implementing a new lease rate and to challenge the constitutionality of I.C. § 58-310A, the statute exempting cottage sites, because the state constitution requires a public auction for any “disposal” of public trust land. The district court held that the statute was constitutional because the leases did not amount to “disposal” of the land.

On appeal to the Idaho Supreme Court, cottage site lessees challenged the Attorney General’s standing to pursue a claim that the statute is unconstitutional. The Supreme Court noted that “when a state litigates in federal court to protect the interests of its people, the state is ‘entitled to special solicitude in [the] standing analysis.’”[2] The Idaho Constitution does not have the “case and controversy” requirement included in the U.S. Constitution, but “though this Court is not bound by the parameters of the federal courts’ standing doctrine, the Attorney General, like state litigants in federal court, should be entitled to special solicitude in the standing analysis because he litigates on behalf of the people of Idaho and their sovereign interests.”

The court noted that in this case, the Attorney General wears two hats. First,

As the State’s legal counsel, the Attorney General is responsible for supporting and upholding Idaho’s Constitution. Indeed, like other State elected officers, the Attorney General is required by the Legislature to swear a loyalty oath to support the Idaho Constitution and faithfully discharge his duties. . . . Therefore, it is incumbent upon the Attorney General to safeguard the Constitution against legislative enactments that encroach upon or conflict with its provisions. Where, as here, a legislative enactment appears to clash with the constitutional duties of a State board, it seems axiomatic that the Attorney General must step forward to uphold the Constitution.

Second, as a member of the Board, the Attorney General “has the obligation “to prosecute or defend actions . . . for the protection of trust assets and of the trustee in the performance of his duties.” [citations omitted]. This would include actions to safeguard trust assets and to prevent unconstitutional encroachment upon the ability of the trustees to carry out their trust responsibilities.” The court concluded that the Attorney General did have standing. “Because of the unique position of the Attorney General as counsel for the State of Idaho and as a trustee of the State endowment lands, the Attorney General is not subject to the usual standing analysis. But, even if that were the case, the Attorney General has standing here. He is pursuing this action on behalf of the endowment land beneficiaries.” Those beneficiaries unquestionably have standing.

The Idaho Supreme Court agreed with the Attorney General that the statute was unconstitutional, because the leases of cottage sites were “disposal” of state trust lands that should be done through auction, as required by the state constitution.

Kentucky

Proffer to Attorney General in Bid-Rigging Investigation May Be Revealed Under Open Records Act

Kentucky v. Attorney General, 2012 Ky. App. LEXIS 44 (Ky. Ct. App. Mar. 12, 2012).

In a 1983 investigation, Leonard Lawson made a proffer of information about bid-rigging on state road contracts. In 2008, Lawson was indicted, with a number of others, on charges of trying to obtain confidential files about state road contracts from the state Department of Transportation. Local newspapers filed a Freedom of Information Act (FOIA) request seeking the proffer made by Lawson in 1983. Lawson sought an injunction, which was granted by the trial court but overturned by the court of appeals.

The court of appeals noted that the state’s open records laws were designed to foster free and open examination of public records. Therefore, any exceptions to the law should be strictly construed. Lawson argued that his proffer should not be disclosed because it falls within the exception for records “containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.” In the alternative, Lawson cited Ky. Rev. Stat. §61.871(h), which protects a “record of law enforcement agencies …that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency. . .”

The court held that the information in the proffer did not contain information of a “personal nature,” nor would its release constitute a “clearly unwarranted invasion of personal privacy.” The proffer “contains information given by Lawson on behalf of Mountain Enterprises regarding its participation in bid-rigging for state road contracts. Though Lawson may not want his words to be made public, our review of the proffer reveals that it does not contain any information which "touches upon the personal features of private lives," or "would be likely to cause serious personal embarrassment or humiliation." In addition, as part of the proffer, Lawson agreed to testify for the government if necessary. “Lawson agreed to provide this information, which he knew could potentially be made public, in order to settle the civil suit against Mountain Enterprises.” Disclosure of this information was not a “clearly unwarranted” invasion of privacy.

Turning to the exception for material compiled by law enforcement agencies, the court held that the Attorney General had not raised any objection to release of the proffer, indicating that its disclosure would not harm the agency, as required by the statute.

Virgin Islands

Attorney General Is Only Enforcer of Conflict-of-Interest Laws

Olive v. DeJongh, 2012 V.I. LEXIS 39 (V.I. Super. Ct., Aug. 3, 2012).

Government funds were sought to improve security and parking at the private residence of the governor of the Virgin Islands. The Attorney General’s office wrote an opinion approving the use of government funds for this purpose, and the improvements were made. A taxpayer sued the governor and other state officials, alleging that they had violated conflict-of- interest rules in order to improve the governor’s property at the expense of the people of the Virgin Islands. Because the Attorney General is the statutorily designated enforcer of the Virgin Islands conflict-of-interest laws, and because the Attorney General had opined that the use of funds was proper in this case, plaintiff alleged that he was suing “on behalf of the Attorney General" to "litigate this action in place of" the conflicted Attorney General.

The conflict-of- interest provisions of the Virgin Islands Code[3] "shall be administered by the Attorney General of the Virgin Islands who shall ... file actions in the appropriate courts when and as necessary to enforce its provisions." Violation of the conflict of interest laws is a criminal offense punishable by a fine and/or imprisonment. Applying tests approved by the Supreme Court and the Third Circuit, the court held,

The Virgin Islands conflict of interest laws do not contain "rights-creating language," focus almost exclusively on the persons being regulated and not the individuals protected, and contain a comprehensive enforcement method entrusted to the Attorney General of the Virgin Islands. Plaintiff has not provided any evidence of legislative intent to provide an implied private right of action in the Virgin Islands conflict of interest laws, much less the "strong indicia" required to displace the remedy provided in [the statute]. . . .The Court finds that the Virgin Islands conflict of interest laws do not confer a private right of action allowing individuals to litigate in the place of the Attorney General.

Virginia

Common Interest Privilege Does Not Apply to Communications with Attorney General

Adkins v. EQT Production Co., 2012 U.S. Dist. LEXIS 89475 (W.D.Va. June 28, 2012).

Plaintiffs sued to recover royalty payments for coalbed methane gas extracted from their land. In the course of litigation, the defendant energy company sought to prevent discovery of some communications between the company and the assistant attorney general who represented the state Gas and Oil Board. The defendant asserted attorney-client and work product privileges extended to these communications through the common interest privilege.

The court found that the state did not have a common interest with the defendant. The state had intervened in a related case, involving the same defendant, seeking solely to defend the constitutionality of the statute governing the Gas and Oil Board. In that case, the state specifically disclaimed any interest in “the purely private aspects of this case, such as who ultimately owns the rights to the coalbed methane gas, or whether the plaintiffs have joined all the necessary parties.” Because the documents at issue here do not concern the constitutionality of the statute, the state and the defendant do not have any common interest. <

Washington

Attorney General Right to Control Litigation

Mackey v. McKenna, No. 12-2-16042-2 (Wash. Super. Ct., King Cty. May 25, 2012).

The Attorney General of Washington, with other states, challenged the federal Patient Protection and Affordable Care Act (ACA). While the case was pending before the U.S. Supreme Court, several women filed suit against the Attorney General, alleging that he violated the Rules of Professional Conduct by, among other things, misleading the Supreme Court as to the state’s position on severability and the relief sought by the state. The suit did not challenge the Attorney General’s authority to bring the case. The plaintiffs based their claims on statements by the Attorney General in press releases and on the Attorney General’s website that he supported severability of the challenged provisions of the ACA.

The Attorney General argued that he had consistently taken the position at every level in this litigation that the provisions of the ACA were not severable. This position “reflects Mr. McKenna’s legal judgment that opposing severability will best serve the interests of the State of Washington, even though it may harm the interests of many of its residents, including plaintiffs.” The court found that the statements in press releases and on the website were “political” statements, made by an elected official, and should be addressed in the political realm. Because the plaintiffs cannot establish that the Attorney General’s legal strategy is arbitrary or capricious, the court declined to “second-guess” the strategy.

[1] State ex rel. Shevin v. Yarborough, 257 So. 2d 891, 894-95 (Fla. 1972) (Ervin, J., specially concurring).

[2] Massachusetts v. E.P.A., 549 U.S. 497, 516 (2007).

[3] V.I. Code Ann. title 3, §§ 1100-1108.

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