COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK

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1 Board of Advisors: Richard Blumenthal Connecticut Richard Briffault Chamberlain Prof. of Legislation John C. Coffee Berle Professor of Law Roy Cooper North Carolina Michael Fisher Judge, U.S. Court of Appeals for the Third Circuit Terry Goddard Arizona Harvey Goldschmid Dwight Professor of Law, Robert Henry Judge, U.S. Court of Appeals for the Tenth Circuit Bill Lockyer Treasurer, State of California Patrick C. Lynch Rhode Island Rob McKenna Washington Gillian Metzger Associate Professor of Law Thomas Miller Iowa Trevor W. Morrison Professor of Law William H. Simon Levitt Professor of Law William H. Sorrell Vermont Susan P.Sturm Jaffin Professor of Law & Social Responsibility Lawrence Wasden Idaho Staff: James E. Tierney Director, National State Attorneys General Program Tam Ormiston Deputy Director, National State Attorneys General Program Ellen P. Chapnick Dean, Social Justice Initiatives COLUMBIA UNIVERSITY IN THE CITY OF NEW YORK LAW SCHOOL MEMO TO ATTORNEYS GENERAL ELECT To: All Attorneys General-Elect From: James E. Tierney, Esq., Maine ( ) and Director of the National Attorneys General Program at. Re: Overview of the Powers and Duties of the Office of State Attorney General Date: November 20, 2008 I. OFFICE OF THE STATE ATTORNEY GENERAL 1. History: The roots of the Office of State Attorney General go deep into the core of Anglo/American jurisprudence. Sources: William Marshall, Break Up The Presidency? Governor s, State Attorneys General, and Lessons from the Divided Executive, 115 Yale Law Journal (2006); Holdsworth, The Early History of the Attorney General and the Solicitor General, 13 Ill. L. Rev ( ); Cooley, Predecessors of the Federal Attorney General: The Attorney General in England and the American Colonies, 2 Am. J. Legal History 4: (1958) 2. Selection: 43 state attorneys general and the Guam are elected statewide for four years terms with all being able to serve at least two terms. Five attorneys general (New Hampshire, New Jersey, Wyoming, Hawaii and Alaska) are appointed by the Governor as are the attorneys general of Puerto Rico, American Somoa, the Virgin Islands, the Northern Marianas. The Attorney General for the District of Columbia is appointed by the Mayor. The Maine is elected by a secret ballot of a Joint Session of the Legislature and serves a maximum of four two year terms. The Tennessee is selected by the Supreme Court of Tennessee and serves for eight years. Source: 1 AJS State Attorney General Sections 2-4, Marshall at Structure: The office of state attorney general is mentioned in virtually all state constitutions. The jurisdiction of the offices of state attorneys general varies significantly and is defined by statute, case law, common law and custom. Source: Marshall at (for relationship with other state officials): Ross and Myers (Ed.) State Attorneys General Powers and Responsibilities, National Association of Attorneys General, (2007); S.M. Matheson, Constitutional status and role of the state attorney general, Jr. U. Fla. J.L. Pub. Policy, 1-31 (Fall 1993); Formal Legal Opinion of the Utah Attorney General," , October 25, 2002; Authority of the Attorney General to Discuss the State's Legal Business," Opinion of the Nebraska, Donald Stenberg, No , August 26, 1992 II. COMMON LAW POWERS OF THE OFFICE OF ATTORNEY GENERAL In an absence of a federal or state statute to the contrary, most state attorneys general possess common law powers. This means that for many jurisdictions the precise powers and duties of an attorney general are not specifically defined by statute but rather evolve over time. See Generally: 7 Am Jur 2d Attorney General 7; Marshall at ; Ross and Myers at 33-51, In re Cardizem CD Antitrust Litigation, 218 F.R.D. 508, 521 (ED Mich. 2003) for description of common law variations among the states. See also: Shevin v. Exxon Corp., 526 Fed. Reporter 2d, (5th Cir.). But see: Blumenthal v. Barnes, 804 A2d 152 (Conn. 2002); State ex. rel. Reynolds v. Smith, 120 N.W. 664 (Wi. 1963). National State Attorneys General Program Social Justice Initiatives 435 W. 116th Street, Box B-26, New York, NY (212)

2 III. CONTROL OF LITIGATION In the absence of federal or state statute or case law to the contrary, the state attorney general has the legal ability to control state litigation. The primary client is the state as a whole and not the individuals holding particular positions. Because state agencies sometimes take conflicting positions, attorneys general are often exempt from some sections of the state rules of professional responsibility. IV. OPINIONS See generally: James E. Tierney, The State Attorney General: Who Is the Client?, Video Lecture, NAAG Summer Meeting, June, 2008, Justin Davids, Attorneys General and the Client- Attorney Relationship, 38 Colum J.L. & Soc. Probs. 365 (2005) Sources: Sec. of Admin. & Fin. v. Atty. Gen., 326 N.E. 2d 334 (Ma. 1975) and Feeney v. Commonwealth, et. al. 366 N.E. 2d 1266 (Ma. 1977); Commonwealth ex. rel Hancock v., Paxton 516 SW 2d 865 (Ky. 1974). But see: People ex rel Deukmejian v. Brown, 624 P. 2d 1206 (Ca. 1981); Wilder v. Attorney General, 439 S.E. 2d 398 (Va. 1994). While almost all attorneys general have the authority to issue legal opinions, the frequency and the impact of those opinions vary among the states. Although not generally binding upon the courts, an Attorney General's official opinion nonetheless has an important bearing on the construction and interpretation of a statute. An official opinion of the Attorney General is especially persuasive when subsequent legislative action appears to confirm the opinion. See generally: Ross and Myers at 75-80, James E. Tierney, Opinions in Pass It On - the Newsletter of the Public Lawyer Section of the ABA, October/November 1995 ; Sources: 7 Am Jur 2d Attorney General ; The Opinion Writing Function of the Attorney General, 18 Idaho Law Rev 9 (1981); Aid for Women v. Foulston, U. S. Dist. Ct for Ks, Case No JTM, April 20, 2006; North Dakota Fair Housing Council, Inc. v. Peterson, 2001 ND 81; 625 N.W. 2d. 551, 2001 (N.D. May 1, 2001) V. U.S. SUPREME COURT AND APPLELLATE PRACTICE/AMICUS CURIAE The decisions of the United States Supreme Court and a state s appellate courts have an extraordinary impact on the ability of attorneys general to enforce state laws and defend the conduct of government officials. Most attorneys general believe their truest legacy is their impact on appellate court decisions. For this reason, attorneys general devote significant resources to appellate practice. According to the Rules of the United States Supreme Court, any state or territory through its attorney general is able to file an amicus brief with the Court as a matter of right and without consent of any party. This unique authority has resulted in attorneys general s filing briefs - often in a coordinated and multistate manner - on a wide variety of issues. An amicus brief from a number of states urging the Court to grant review in a case tells the Court that a case is of nationwide importance, which is one principal criterion for granting certiorari. Developing positions before the United State Supreme Courts and other federal appellate courts is so important that most attorneys general now have a State Solicitor (or a person with a different title who serves that role), whose responsibility to ensure high quality and consistency of positions before appellate courts as well as the amicus process. NAAG Supreme Court Counsel: Dan Schweitzer NATIONAL STATE ATTORNEYS GENERAL PROGRAM 2

3 VI. MULTISTATE INITIATIVES With the centralization of the economy and the increased efficiencies that cooperation among attorneys general produces, the last twenty years has seen the rise of multistate reports, investigations, litigation and settlements. Beginning in the areas of antitrust and consumer protection, these initiatives are now commonplace in other areas of attorney general jurisdiction. Sources: Jason Lynch, "Federalism, Separation of Powers, and the Role of State Attorneys General in Multistate Litigation," 101 Columbia Law Review , (2001); Brooke A. Masters, States Flex Prosecutorial Muscle, Attorneys General Move Into What Was Once Federal Territory, Washington Post, Wednesday, January 12, 2005, Page A01; Michael Greve, Government By Indictment, Attorneys General and their False Federalism, American Enterprise Institute, AEI Working Paper #110, May 24, 2005; available at Conference of the Institute for Legal Reform of the U.S. Chamber of Commerce of May 24, Various papers found at For student papers analyzing many of these initiatives, see: A.G. Library, National State Attorneys General Program, ; available at For an outstanding analysis of how these cases work in practice, see: Sally Peacock, How the Household Settlement Uncorked a Law Enforcement Bottleneck, Fall 2003 ( A.G. Library ) For most recent legal analysis of the authority of attorneys general to retain outside counsel, see: State of Rhode Island: Lead Industries Association, Inc, et. al., Rhode Island Supreme Court, July 1, 2008 (Section III). VII. AREAS OF FUNCTIONAL RESPONSIBILITY 1. Antitrust: Virtually all states grant antitrust authority to state attorneys general. Furthermore, federal law gives explicit authority to all state attorneys general to enforce federal antitrust law. Pursuant to the Hart-Scott-Rodino Antitrust Improvements Act, a 1976 Amendment to the Clayton Act, state attorneys general are able to represent natural persons as parens patriae and therefore recover damages. Sources: Ross and Myers at ; Harry First,"Symposium: Pyrrhic Victories? Delivering Remedies: The Role of States in Antitrust Enforcement," 69 Geo. Wash. L. Rev (2004); Stephen Calkins, Perspectives on State and Federal Antitrust Enforcement, 53 Duke Law JournaL 673 (2003); Selected submissions by state attorneys general to the Antitrust Modernization Commission (2005); available at NAAG Antitrust Counsel: Emily Myers. 2. Consumer Law: Virtually all states have enacted Uniform and Deceptive Practices Acts, generically referred to as UDAP or Little F.T.C. Acts, that are modeled and explicitly tied to the Federal Trade Commission Act. 15 U.S.C. Sec. 45. These laws comprise the basic jurisdiction of state attorneys general to protect consumers from unscrupulous business practices. Sources: 17 Am Jur 2d Consumer and Borrower Protection, 281; Ross and Myers at pp ; Conference Proceedings; State Attorneys General Consumer and Leadership Sessions, March 1-3, 2007, National State Attorneys General Program, ; NAAG Contact: Dennis Cuevas 3. Charitable Trusts: All but five state attorneys general are involved in the regulation of charitable trusts. While the jurisdiction varies, attorneys general generally represent the beneficiaries of charities when allegations arise that the trustees of charities are in violation of their fiduciary duty. Some states have extensive authority including supervising non-profit accounting and receiving annual reports. Sources: Conference Proceedings; Charities Law Conference, March 28-29, 2008, National State Attorneys General Program, ; Ross and Myers at NATIONAL STATE ATTORNEYS GENERAL PROGRAM 3

4 Evelyn Brody (with D. Reiser), Who Guards the Guardians? Monitoring and Enforcement of Charity Governance, 80 Chi-Kent L. Rev. 543 (2005); Mark Sidel, The Struggle for Hershey: Community Accountability and the Law in Modern American Philanthropy, 65 U. Pitt. L. Rev. 1 (Fall 2003) 4. Civil Rights: Civil Rights enforcement authority for state attorneys general varies widely. In twenty-six states, the attorney general has explicit statutory authority to enforce civil rights legislation in specific areas, including employment, housing, public accommodations, and lending. Seven other states have general statutory prohibitions against discrimination thereby authorizing protection of all legal rights otherwise created by statute or constitution. In nineteen states, the attorney general has no explicit independent authority in the area of civil rights although civil rights issues often arise when enforcing other laws, e.g. consumer protection, RICO or environmental laws. Source: Civil Rights Enforcement Authority of State Attorneys General: An Overview, by the Wisconsin Department of Justice (1986). NAAG Civil Rights contact: Andrea Hampton 5. Criminal Law: While all state attorneys general are perceived by the public as the state s chief law enforcement officer, the reality is that criminal jurisdiction varies widely among the states. In some states (Alaska, Delaware and Rhode Island), the attorney general is the sole criminal prosecutor. In most states (Arizona, New Jersey, Maine, Iowa, Massachusetts), the attorney general has areas of concurrent and supervisory criminal jurisdiction with local prosecutors. Many states also have responsibilities in handling criminal appellate matters. Sixteen states have access to statewide grand juries and many have state RICO statutes. In a few states (Arkansas, Connecticut and Tennessee), attorneys general have virtually no criminal jurisdiction. Sources: Ross and Myers at pp ; James E. Tierney, State Grand Jury and the Office of State Attorney General, NAAG publication (1997). 6. Environmental Law: Protection of the environment is an important component of the responsibilities of every attorney general. In all but a handful of states, the attorney general is charged with enforcing and prosecuting both civil and criminal violations of state environmental laws. In this capacity, the attorney general usually represents state regulatory agencies. In many states the attorney general also has independent authority to enforce state laws and to use the common law without the involvement or acquiescence of a state regulatory agency. Attorneys general also represent states and state agencies when sued by third parties challenging state laws on specific state administrative actions (such as the grant or denial of a permit). Attorneys general may also initiate or defend litigation under federal law. They often work with other Attorneys General to comment on federal legislative or regulatory proposals or appear as amicus curiae in cases of importance. Sources: Ross and Myers at pp ; Proceedings from the Environmental Conference at (2004) at The Role of the Attorney General in Environmental Law Enforcement, by New York Assistant Attorneys General Peter Lehner and Chris Amato, Environmental Law in New York, March NAAG Contact: Barbara Cotter 7. Bankruptcy: Defendants in state enforcement actions frequently seek relief by filing bankruptcy. Moreover, the states collect many different forms of financial obligations. Thus, bankruptcy issues cut across most aspects of law enforcement ranging from collecting taxes, delinquent student loans, and child support tax liability, to prosecuting environmental and consumer protection violations, to suing on the state s commercial contracts. Attorneys general have responded by developing in-house bankruptcy expertise and by occasional retention of outside bankruptcy counsel. Sources: Karen Cordry, NAAG Bankruptcy Counsel, "Integrating Bankruptcy Law with Enforcement Activities of the Office of the Attorney General -- An Update, February See also: Polluter s Haven, Enforcing Environmental Laws Inside and Outside Bankruptcy, Tim Abbott 08. Found in the AG Library at NAAG Bankuptcy Counsel: Karen Cordry 8. State Defensive Litigation: Much of the work of the Offices of the Attorneys General is taken up with prosecuting claims for the state s citizens, but the offices are also charged with defending the state from litigation, ranging from suits filed by NATIONAL STATE ATTORNEYS GENERAL PROGRAM 4

5 prisoners to employment discrimination suits to school financing disputes. Such matters are of vital interest to the states, not only for the costs that may be imposed on the state s tax payers through such litigation, but also because of its potential impact on how the state carries out its legislative and administrative functions. Most fices, accordingly, have created one or more special units to specialize in representing the state in such litigation and asserting the various substantive and procedural defenses available to the state. For the last three years, NAAG has conducted training sessions for those lawyers who specialize in defensive litigation. NAAG Contact: Karen Cordry 9. Medicaid Fraud: The offices of 41 of the attorneys general contain their state s Medicaid fraud units that are authorized to prosecute both criminal and civil cases arising from the Medicaid program. The National Association of Medicaid Fraud Control Units (NAMFCU) serves as a forum for the nationwide sharing of information concerning the problems of Medicaid fraud. It also improves the quality of Medicaid fraud investigations and prosecutions by conducting training programs. The Executive Director of the Association is housed at NAAG Headquarters in Washington, D.C. Sources: Medicare-Medicaid Anti-Fraud and Abuse Amendments of 1977, Public Law ; Ross and Myers at pp NAAG Medicaid Fraud Contact: Barbara L. Zelner 10. Labor Law: Most attorneys general enforce their state wage and hour and prevailing wage laws. Source: The Role of Attorneys General in the Enforcement of Labor Law, Jennifer Brand, 2007 at the Labor Project, National State Attorney General Program, ; Peter Romer-Friedman, Eliot Spitzer Meets Mother Jones: How Attorneys General Can Enforce State Wage and Hour Laws, 39 Columb. J. L. & Soc. Probs. 495 (2006) 11. Securities Law: While only five attorneys general (New York, New Jersey, Maryland, Delaware, South Carolina) have complete jurisdiction in the area of securities law, most attorneys general have the responsibility to represent the securities administrator or agency in enforcement actions. Sources: Spoiling for a Fight: The Rise of Eliot Spitzer, Brooke Masters, Holt & Co, 2006; Johnathan Mathiesen, Dr. Spitlove or How I Learned to Stop Worrying and Love Balkanization, 2006 Columb. Bus. L. Rev. 311 (2006) See also: Bureau of Investor Protection and Securities, Office of the New York. North American Securities Administrators Association (NASAA) is an organization that is made up of all state securities administrators. NATIONAL STATE ATTORNEYS GENERAL PROGRAM 5

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