Arkansas—Johnson, a death-row prisoner, sought post-conviction DNA testing of pieces of evidence found at the crime scene under Arkansas’ Act 1780. The Arkansas supreme court affirmed a trial court’s denial of Johnson’s petition, holding that Act 1780 only authorizes DNA testing “if it can provide materially relevant evidence that will significantly advance the petitioner’s claim of innocence in light of all evidence presented to the jury.” The petitioner must show that the DNA testing “may produce new material evidence that would (A) support a theory of defense that “would establish the petitioner’s actual innocence” and (B) raise a reasonable probability that the petitioner did not commit the offense.” (internal quotes omitted).
Johnson brought a §1983 action in federal court against the attorney general, the county prosecutor, and the director of the state’s crime laboratory, alleging that their refusal to allow him to test the evidence was a denial of his due process and seeking an order directing them to release the evidence to him. Defendants argued that Johnson lacked standing because they have no connection to the Arkansas judiciary’s enforcement of Act 1780. They also argued that they were protected by Eleventh Amendment immunity. The district court disagreed with defendants, who appealed to the Eighth Circuit.
The Eighth Circuit held that Johnson had standing to challenge Act 1780 and the actions of the attorney general, prosecutor, and crime lab director. Citing the Supreme Court’s recent decision in Reed v. Goertz, 143 S.Ct. 955 (2023), in which it rejected Texas’ argument that the death-row prisoner in that case did not have standing, the Eighth Circuit held that Johnson had standing. With respect to the attorney general, the court held that Act 1780 allows the prosecuting attorney or the attorney general to respond to a petition like Johnson’s, and in this case, the attorney general did respond, opposing Johnson’s petition. The attorney general could have instead agreed to the DNA testing, so the Eighth Circuit held that the attorney general “thereby caused” in part, Johnson’s ongoing injury. This same injury serves to overcome Eleventh Amendment immunity as well, since Johnson is seeking prospective injunctive relief (as permitted by Ex Parte Young) and the parties, including the attorney general, have a sufficient connection to the enforcement of Act 1780. Johnson v. Griffin, 69 F.4th 506 (8th Cir. 2023).
Massachusetts—The state contracted with IDDC for protective gear during the COVID-19 pandemic. IDDC used a subcontractor, USiDG, who spent the state’s money, but supplied almost none of the contracted-for material. The Massachusetts attorney general issued a civil investigative demand (CID) to USiDG, seeking information and a video deposition. USiDG responded by letter, declining to provide the documents or the deposition, but did not file a motion seeking to set aside or modify the CID as allowed under Massachusetts law. The attorney general filed an action to enforce the CID. USiDG argued that the attorney general lacked authority to bring this action and the court lacked personal jurisdiction over USiDG. The court concluded that USiDG waived its personal jurisdiction defense by failing to file a motion for a protective order in response to the CID. The court cited prior Massachusetts caselaw, which held that “Merely informing the Attorney General of its refusal to comply does not suffice to shift the burden to the Attorney General to take the next legal step.” With respect to the question of whether the court has subject matter jurisdiction, the court granted the attorney general’s motion for jurisdictional discovery about the facts surrounding the contract with USiDG and its connections with Massachusetts. Attorney General v. USiDG, 2023 Mass. Super. LEXIS 34 (Mass. Super. Suffolk Cty. Apr. 20, 2023).
New Mexico—In the context of a proceeding under New Mexico’s public records act, a New Mexico appellate court discussed the relationship between the attorney general’s office and the New Mexico Livestock Board (the Board). The Board declined to disclose a communication between the Board’s General Counsel and the attorney general’s office asking whether the Board could take certain actions in light of pending and potential litigation against the Board. The plaintiff argued that the communication was not made for the “purpose of facilitating or providing professional legal services” to the Board. The court held, “whether a proposed course of action will be in compliance with litigation or potential litigation is exactly the sort of request from an agency for legal advice the privilege protects.” Henry v. N.M. Livestock Board, 2023 N.M. App. LEXIS 27 (N.M. Ct. App. Apr. 28, 2023).
Ohio—Plaintiff filed a mandamus action against OneOhio Recovery Foundation (OneOhio) seeking documents under Ohio’s Public Records Act. OneOhio stated that it was a private nonprofit corporation and was not a “public office” subject to the Public Records Act. Plaintiff argued that OneOhio was the functional equivalent of a public office under Ohio law. OneOhio was created under a memorandum of understanding (MOU) between the state and local governments to allocate and use Ohio’s share of the settlement proceeds in the national opioid litigation. OneOhio’s governing board, which has 29 members, includes members selected by the governor and the attorney general, as well as the legislature and state and local authorities. OneOhio has an expert panel, with members appointed by the Board members chosen by the governor, the attorney general and the local governments. The MOU provides guidelines for disbursement of opioid litigation settlement proceeds.
The Ohio supreme court analyzed several factors in deciding that OneOhio was the functional equivalent of a public office under the Ohio Public Records Act. The court found that OneOhio was performing a governmental function, because rather than providing substance-abuse treatment, it was disbursing public money for that purpose. The court noted that the members of OneOhio’s Board, and its Executive Director, are appointed by state and local government officials. The court also emphasized that OneOhio’s operational expenses have been paid entirely by the attorney general while the Foundation awaits receipt of settlement proceeds for its funding. “Specifically, [plaintiff] submitted evidence of a $1 million payment from the attorney general’s office to [OneOhio] in September 2022, which was earmarked for [OneOhio] ‘startup expenses.’” Finally, the court found that in the absence of the MOU creating OneOhio, the settlement funds would have gone directly from the attorney general to state or local governments, as required by statute. The court concluded that OneOhio was the functional equivalent of a public office and subject to the Open Records Act. State ex rel. Harm Reduction Ohio v. OneOhio Recovery Fndn., 198 N.E.3d 100 (Ohio 2023).
Texas–A mother was ordered to pay child support, but two years later the court terminated that obligation and ordered the father to pay child support instead. The Texas attorney general’s office (OAG) continued to garnish the mother’s wages after this change and failed to enforce the child support obligations of the father. The mother filed a motion to compel termination of the withholding order and sought sanctions against OAG, alleging that OAG failed to comply with the court order terminating her child support obligation which was an abuse of process and demonstrated bad faith. OAG responded that the court did not have jurisdiction to award sanctions, based on OAG’s sovereign immunity and the separation of powers doctrine. The trial court dismissed OAG”s argument but scheduled a later hearing on the sanctions and OAG appealed.
The appellate court held that what the mother was seeking in this action was in the nature of a determination of the rights and obligations of the parties, which is not barred by sovereign immunity. With respect to the request for sanctions, OAG argued that the trial court has “inherent authority to sanction bad faith conduct resulting from the impeding of the “judicial process itself” (emphasis in original) and that its actions in the administrative process for the writ of withholding are not part of the judicial process. OAG cited cases seeking sanctions under the Texas civil remedies statute. In this case, however, the mother was seeking sanctions under the trial court’s inherent authority. The appellate court noted, “It is well established that when the State enters the courts as a litigant, it must observe and will be bound by the same evidentiary and procedural rules that apply to all litigants.” In this case, OAG acknowledged that it could be sanctioned under Rule 13 of the Texas Rules of Civil Procedure, and the court did not see a difference between its authority under the Rule and the court’s inherent authority.
Citing Texas supreme court precedent, the court noted, “Courts possess inherent powers that aid the exercise of their jurisdiction, facilitate the administration of justice, and preserve the independence and integrity of the judicial system.” The court held that the trial court has jurisdiction to order sanctions under its inherent authority, and sovereign immunity is not implicated. Because the trial court had not yet ordered sanctions, the appellate court determined that the issue of separation of powers was not ripe for decision. In the Interest of E.M., 665 S.W. 2d 832 (Tex. App. 2023).
