Florida ― A Florida Court of Appeals held that the attorney general, in settling its own lawsuit on behalf of the State of Florida against certain opioid manufacturers, distributors, or prescribers (the “Opioid Defendants”), lacked the power to release and eliminate claims against the Opioid Defendants brought by subdivisions of the state, namely, school boards, legislatively created hospital districts, and the Lee Hospital System (“Appellants”). The State’s settlement with the Opioid Defendants required the attorney general to seek to dismiss Appellants’ claims. The attorney general sought to do so by bringing a declaratory action in circuit court seeking a “judgment finding that . . . she had the authority under common and general law to release the Appellants’ claims against the Opioid Defendants and that the settlement agreements accomplished that release.” The circuit court granted that judgment, “rul[ing] that the Attorney General acted as the state sovereign who controlled all legal rights and remedies of independent state bodies created by the constitution and general law. Thus, the Attorney General could waive and eliminate Appellants’ legitimate damage claims against the Opioid Defendants.” The Florida Court of Appeals reversed.
The Court ruled that, “even to the extent that the Attorney General correctly asserts the common-law authority to do so, the Legislature removed that authority when it created Appellants and assigned the rights of legal representation of claims to Appellants themselves, not the Attorney General. If the Legislature can abrogate the long-established common-law immunity of elected officials, it certainly can abrogate any asserted common-law authority of the Attorney General to dispose of local entities’ legal claims.” (Citation omitted.) The Court found that “[t]he Attorney General has no more authority to litigate such claims than the claims of a private hospital asserting its own individual damages. To hold otherwise would make the Attorney General equal to the Governor and the Legislature. But the Attorney General is not the supreme executive of Florida, who may assert policy prerogatives on behalf of the Governor and the Legislature.”
The Court acknowledged that “the authority and duties of the Attorney General are broad and encompass a varied field of operation in the courts and in civil and criminal law enforcement.” But that power has its limits, held the Court, and it had previously “rejected the proposition that the Attorney General had authority under the common law to represent non-Executive Branch entities, without their approval[.]” In short, “Appellants are not Executive-Branch entities somehow subordinate to the Attorney General’s legal control.” Halifax Hospital Medical Center v. Office of the Attorney General, 393 So. 3d 1253 (Fla. App. Ct. August 14, 2024).
Guam ― The Guam Supreme Court set out in an opinion the reasoning behind a declaratory judgment it issued on May 31, 2024, answering certified questions related to “responsibilities of the Attorney General of Guam to executive branch agencies under the Organic Act of Guam and the laws of Guam.” The questions arose in the wake of notices sent by the attorney general to 22 executive branch agencies, stating that he was “temporarily withdrawing” from representing them because of a potential conflict of interest between providing advice to the agencies “and then prosecut[ing] officials of those same agencies for the matters about which they consulted the Office of the Attorney General.”
The first certified question asked whether the attorney general could “withdraw from legal representation of an executive branch agency, or otherwise decline to provide legal services to such agency, when the Attorney General claims such representation conflicts with ongoing investigations or prosecutions.” (Capitalization changed.) The Court provided an elaborate answer to that question. Among other things, the Court ruled that the attorney general has a mandatory duty to review all “line agency” contracts and to review contracts or procurements worth $500,000 or more for all executive branch agencies. Next, it ruled that “line agencies are not statutorily empowered to hire outside counsel for legal matters, suggesting that the Office of the Attorney General alone is empowered to represent these agencies.” But “in the event of a conflict of interest or disagreement over the public interest with a line agency, the Attorney General is required to appoint a special assistant attorney general to represent the agency through his common law powers.” As to those agencies and “autonomous public corporations” that are authorized by statute “to hire counsel other than the Attorney General,” the attorney general need not represent them even upon request “if he can do so without prejudicing their interests, and he first approves the employment of private counsel.” Finally, the Court held that “when the responsibilities of the Attorney General to represent the government and the public come into conflict, he must assign his staff in a way that both (1) affords independent legal counsel and representation to the agencies and (2) seeks justice in prosecutions brought in the People’s name. Because the public’s interest in prosecutions—even of government corruption—is not elevated above the Attorney General’s duty to represent executive branch agencies, nothing prevents the Attorney General from withdrawing from a prosecution in an appropriate case. But if he does not, then he must allow assigned or specially appointed counsel to represent the agency unfettered and uninfluenced by the Attorney General.”
The second certified question asked whether the attorney general may “provide legal services to the agency, notwithstanding his access to confidential information from both the agency and the investigations and prosecutions.” (Capitalization changed.) The Court held that “[t]he Attorney General owes a duty of confidentiality and loyalty to the agencies because they are his clients. Despite these duties, the Office of the Attorney General may represent an executive branch agency in civil matters while investigating and prosecuting an agency official in criminal matters without violating ethical duties if the Attorney General’s staff can be assigned in a way that affords independent legal counsel and representation in the civil matter, and so long as such representation does not result in prejudice to the official in the criminal matter. There is no inherent conflict of interest between the Attorney General’s dual roles as Chief Legal Officer and Public Prosecutor.” (Citations omitted.) The Court added, however, that an actual conflict of interest could arise, such as where a state “attorney has advised a government officer in his or her official capacity on matters related to an offense with which the officer is charged. Whether that conflict should be imputed to the entire Office of the Attorney General should be decided case by case after considering the entire complex of facts surrounding the conflict.” (Citations omitted.)
The third certified question asked whether “the Attorney General [is] required to implement conflict protocols consistent with the Guam Rules of Professional Conduct including, but not limited to, an ethical screen or assignment of investigations or prosecutions of agency officials to an independent special prosecutor.” (Capitalization changed.) The Court held that (1) those Rules “apply to the Attorney General, despite his ‘unique position as the Chief Legal Officer of the Government of Guam’”; (2) those Rules, however, “deliberately provide flexibility for government attorneys and should not be mechanically applied in any case”; (3) “the Attorney General may erect conflict walls to avoid violating conflict-of-interest rules”; and (4) alternatively, the attorney general may “appoint special assistant attorneys general to provide services to executive branch agencies and departments.”
Finally, in answer to the fourth certified question, the Court ruled that “[t]he Governor has the authority to appoint counsel for an agency in narrow circumstances where the Attorney General has explicitly refused to act, is incapable of acting, or is unavailable for some other reason.” That said, “[t]his narrow exception to the general rule” that “the Attorney General is the legal representative for the Government of Guam” “does not arise where the agency merely disagrees with the advice of the Attorney General or dislikes the way the Attorney General performs the duties of the office.” The Court held that the Governor can exercise her power to appoint counsel for agencies here, where the attorney general “unambiguously stated he was not the attorney for the [22] agencies and told agencies to seek outside counsel.” In re Guerrero, 2024 Guam 18, 2024 Guam LEXIS 32 (Dec. 31, 2024).
Kentucky ― The Kentucky Court of Appeals held that the office of the attorney general (“OAG”) lacked authority to conduct a particular criminal investigation. OAG sought to investigate the employment of two Jane Does, both employed by Roe LLC. The Does had another employer at that time which received some of its funding from the Commonwealth. OAG looked for potential “violations of the criminal and penal laws arising out of, involving or in connection with state funds paid for ‘services . . . to the Commonwealth or any of its political subdivisions.’” To further its investigation, OAG issued a grand jury subpoena to John Roe, a member of Roe LLC, which sough various records related to the Does’ employment with Roe LLC. OAG sought “evidence that unspecified and indirect state funds paid to these employees may have been related to some malfeasance connected with their work.” Roe and the Does moved the circuit court to quash the subpoena. The circuit court did so, for among other reasons because “the Attorney General has no jurisdiction over this matter.” The Court of Appeals affirmed in relevant part.
The Court first described OAG’s authority in criminal cases. First, “OAG may assist when requested to do so by local prosecutors in ‘any criminal investigation or proceeding.’ . . . In these situations, the OAG may do what the local prosecutor may do, including issuing subpoenas. But the OAG may not deprive the local prosecutors of their authority, which includes their prosecutorial discretion.” (Citations omitted.) Second, “the General Assembly gave the OAG independent authority over certain types of [criminal] cases.” OAG argued here that its subpoena “was authorized by another specific grant of authority—prosecution of those who receive improper payment from the state treasury.” The Court disagreed, holding that “this statute deals only with direct payments from the treasury in Frankfort.” Here, though, “[t]he Does do not receive any funds directly from the treasury. They are employees, and their employers, not the Commonwealth, are responsible for their paychecks. Those paychecks are not issued from the state treasury. Simply because an employer receives some small percentage of funding from the Commonwealth does not mean the OAG can investigate payments by that employer which have only some theoretical and indirect connection to state funding.” Commonwealth of Kentucky v. Doe, 696 S.W.3d 840 (Ky. App. Ct. August 9, 2024).
New Mexico ― The New Mexico Supreme Court held that “the New Mexico Office of the Attorney General (Attorney General or OAG), in representing the State in civil litigation brought by the attorney general, has the discovery authority to obtain and produce documents and information from a state executive agency that is not a named party to the litigation.” The attorney general filed suit against Johnson & Johnson and Johnson & Johnson Consumer Companies, Inc. (collectively, Petitioners), as well as several affiliate companies, alleging they “marketed, advertised, and sold talcum powder products in New Mexico despite knowledge that those products contained carcinogens, including asbestos.” The state’s amended complaint alleged that six state executive agencies not named as parties to the litigation “incurred unspecified expenditures due to Petitioners’ alleged wrongdoing.” In the state district court, Petitioners moved to compel production of documents from those six state agencies. The attorney general opposed the motion, asserting that he “‘has neither possession, custody or control of documents within other branches, agencies, departments, or other entities of State of New Mexico government, nor, unless otherwise advised by the State, the practical ability to get documents from those agencies.’” After the district court denied the motion to compel, the New Mexico Supreme Court granted a “petition for writ of superintending control to review the statutory and separation of powers issues” presented.
The New Mexico Supreme Court vacated the district court order and instructed that court to compel the attorney general to produce the disputed documents. The Court explained that, “no matter how the OAG’s litigation role is styled, it is that office—to the exclusion of all other executive departments and agencies—that controls the substance and conduct of such state-interest civil lawsuits.” The Court further concluded that the attorney general has “the practical ability” to obtain the requested documents. The Court pointed to a state statute that “recogniz[es] the virtually unfettered control given the Attorney General—as the chief law officer of the state—over the conduct of all litigation matters the Attorney General chooses to bring.” (Quotation marks omitted.) And that broad power, held the Court, “necessarily encompass the authority, if not the obligation, to produce responsive documents and information created or possessed by non-party executive agencies.” The Court also ruled that, as a constitutional matter, the attorney general’s exercise of this authority would not create a conflict with the governor’s power over executive branch agencies. Johnson & Johnson v. Wilson, 2024 N.M. LEXIS 215 (Oct. 21, 2024).
Ohio ― The Ohio Court of Appeals reaffirmed that “the Ohio Attorney General has exclusive authority to enforce charitable trusts.” The will of Brigadier General Perry L. Miles, who died in 1961, created a charitable trust (the “Trust”) consisting of property and money to be used for the “benefit to the residents of Johnstown Village, Liberty Township and surrounding community.” In August 2022, the Trust’s trustee sought permission to “terminate the Trust, and distribute the Trust’s assets to the Licking Park District to fund the development of a memorial park, and to the Licking County Foundation to fund scholarships for local schools.” Appellants City of Johnstown and others (hereinafter “Johnstown Contingent”) filed a motion to intervene and a complaint for declaratory judgment. The Ohio Attorney General then filed his own motion to intervene, and sought to dismiss the Johnstown Contingent’s complaint for declaratory judgment. The trial court granted the attorney general’s motion, and the Ohio Court of Appeals affirmed.
The Court noted that it had previously held that under Ohio law, “the Ohio Attorney General has exclusive authority to enforce charitable trusts. ‘Permitting possible beneficiaries to have separate counsel besides the Attorney General and to institute their own actions to enforce charitable trusts might unduly burden trustees and compromise the best interest of the beneficiaries.’ Because the enforcement of a charitable trust is done in the interest of the general public, the attorney general is the proper party to prosecute the claim.” (Citations omitted.) The Court rejected Appellants’ contention that the attorney general’s representation will be inadequate due to his efforts to prohibit their participation in the case. And the Court added that, unlike the attorney general, the Appellants do not represent the entire community. Johnstown v. Smith, 2024 Ohio App. LEXIS 3851 (Oct. 24, 2024).
Texas ― The Texas Supreme Court held that separation-of-powers principles bar the judiciary from engaging in “a free-ranging power to second-guess the attorney general’s and his first assistant’s exercise of discretion in making initial filings that is wholly divorced from and collateral to the litigation in which those filings are made.” Following the 2020 presidential election, the State of Texas―through its attorney general―moved for leave to file an original action in the U.S. Supreme Court. First Assistant Attorney General Brent Webster was listed below the attorney general on the pleading. The U.S. Supreme Court denied the motion without reaching the merits of Texas’s argument. Various individuals, including Brynne VanHettinga, filed grievances against Webster for making “specious legal arguments and unsupported factual assertions” in the initial pleadings. The Office of Chief Disciplinary Counsel (CDC) dismissed VanHettinga’s grievance, but the Board of Disciplinary Appeals reversed. The case made its way to district court, where the CDC specified six alleged “misrepresentations,” “false statements,” and “representations [that] were dishonest” in the pleadings. The district court ultimately ruled that “the separation of powers doctrine deprive[d] [it] of subject matter jurisdiction.” The Court of Appeals reversed, but the Texas Supreme Court reversed in turn, agreeing with the district court.
The Texas Supreme Court acknowledged that “the judicial power necessarily includes the ‘power to regulate the practice of law in Texas for the benefit and protection of the justice system and the people as a whole.’” But it found that that power clashes with the attorney general’s constitutional and statutory powers. And because “the first assistant acts under the direction of the attorney general, he does so as if the attorney general himself had acted”―meaning that “[t]he challenge posed by the commission [] is a challenge to the powers entrusted to the attorney general.” The Court then explained that the state constitution and statutes empower the attorney general to exercise “judgment and discretion . . . not only [in] bringing and defending lawsuits but also . . . the ‘right to investigate the facts and [to] exercise his judgment and discretion regarding’ the suits in which the State is an interested party.” That means “the attorney general’s assessments in bringing suit are privileged at a constitutional level from collateral review by the other branches.” In this “clash” between the judicial power and the attorney general’s power, the outcome is not “close”: “if the contents of the pleadings are objectionable, whether for legal or ethical reasons, only direct scrutiny—that is, by the court to whom the pleadings are presented—is permissible under the separation-of-powers doctrine.” The judiciary, here acting through the CDC, lacks “a free-ranging power to second-guess the attorney general’s and his first assistant’s exercise of discretion in making initial filings.”
In so holding, the Court explained that “[t]he first assistant, for his part, does not dispute that he is bound by the disciplinary rules, which indeed bind all lawyers. But that the first assistant, like all lawyers, is subject to the applicable disciplinary rules does not address how the rules apply in a context laden with constitutional authority or how they are to be enforced if the violation allegedly springs from initial pleadings.” In the end, “even statutory duties cannot trump the attorney general’s constitutional authority.” The Court added that the attorney general is subject to political checks, as the “People of the State . . . are empowered to renew his engagement, or not, every four years.” Webster v. Commission for Lawyer Discipline, 2024 Tex. LEXIS 1175 (Dec. 31, 2024).
Wisconsin ― A Wisconsin Court of Appeals panel rejected the attorney general’s challenge to a 2018 Wisconsin statute, Wisc. Stat. §165.08(1), which provides that the state “legislature’s Joint Committee on Finance must provide oversight and approval before the attorney general may settle” certain Department of Justice civil cases. The Wisconsin Supreme Court had rejected a facial challenge to the statute in Service Employees Int’l Union, Local 1 v. Vos, 946 N.W.2d 35 (2020) (SEIU), holding that the statute did not violate the separation-of-powers doctrine. In 2021, the attorney general and others (collectively, DOJ) asserted an as-applied challenge. DOJ alleged that the statute “violates the constitutional separation of powers with respect to two categories of civil actions: (1) civil enforcement actions brought under statutes that the Attorney General is charged with enforcing, such as environmental or consumer protection laws; and (2) civil actions the [DOJ] prosecutes on behalf of executive-branch agencies relating to the administration of the statutory programs they execute, such as common law tort and breach of contract actions.” The circuit court agreed with DOJ as to both categories, but the Court of Appeals reversed.
The Court of Appeals stated that “[t]he DOJ’s argument rests on the premise that settlement of actions in the two categories of cases it has identified constitutes a core executive power—one that cannot be transferred to the legislature without violating Wisconsin’s separation of powers doctrine.” But the Court of Appeals quoted a Wisconsin Supreme Court precedent declaring that “[t]he doctrine of separation of powers does not demand a strict, complete, absolute, scientific division of functions between the three branches of government. The separation of powers doctrine states the principle of shared, rather than completely separated powers. The doctrine envisions a government of separated branches sharing certain powers.” And, critically here, in SEIU the Wisconsin Supreme Court ruled that “the attorney general’s role is not, at least in all cases, a core executive function . . . . While representing the State in litigation is predominantly an executive function, it is within those borderlands of shared powers, most notably in cases that implicate an institutional interest of the legislature.”
The Court of Appeals concluded that the “institutional interests of the Legislature [are] implicated in the two categories of cases identified by the DOJ” because in SEIU the Supreme Court found that “where litigation involves requests for the state to pay money to another party, the legislature, in at least some cases, has an institutional interest in the expenditure of state funds sufficient to justify the authority to approve certain settlements.” Added the Court of Appeals here, “the DOJ concedes that ‘the Legislature must calculate how much income is needed to cover that year’s anticipated expenses plus any deficiency from the previous year.’ How can the legislature do so without taking into account settlement proceeds—proceeds that range from thousands of dollars to many millions of dollars?”
The Court of Appeals also rejected DOJ’s alternative argument “that, even if settlement is a shared power in some cases in the identified categories, Wis. Stat. §165.08(1) violates the separation of powers because it ‘unduly burdens and substantially interferes with the executive branch’s ability to perform its constitutional settlement role.’” The Court concluded that SEIU already found that argument without merit. The Court further concluded that, in any event, DOJ failed to show that “the law has ‘infected and necessarily altered [its] decision-making at every stage.’” Kaul v. Wisconsin State Legislature, 2024 Wisc. App. LEXIS 1017 (Dec. 2, 2024).
