Tuesday, March 30, 2010
Law - Who is in charge of determining a state's legal position? A governor or an attorney general?
Is the attorney general of a state and his or her office a part of the executive branch, representing the state at the behest of his client, the head of the executive, the governor?
Or is the attorney governor of a state independent of the three branches of governor, making legal, and hence policy decisions, on her own -- decisions such as when to appeal a case, when to challenge a law, when to file or join an amicus brief with the SCOTUS?
Does it matter if the attorney general is separately elected, as opposed to appointed by the governor. Does it matter if his office is created by statutes, or by the constitution of the state?
This question is made real by the current debate over the filing of challenges to the constitutionality of the new health care law. Here are some snippits from recent stories:
- [Arizona] Attorney General Terry Goddard, who typically represents the state in legal issues, announced last week he would not join a lawsuit filed by more than a dozen other states challenging the federal law. Goddard said the lawsuit would be unlikely to succeed and would be a waste of taxpayer money.
Goddard, who is running for the Democratic nomination for governor, called Republicans' pursuit of a lawsuit ''saber rattling and pure symbolism.''
The legislation introduced Monday is designed to give [Govedrnor] Brewer clear authority to go around Goddard and sue on behalf of the state. * * *
House Democratic leader David Lujan, of Phoenix, introduced a bill that would ban the use of taxpayer money for the lawsuit.
''Gov. Brewer's lawsuit is a waste of taxpayers' time and money, when we could use that money for many things that the state is lacking, such as better public safety,'' said Lujan, who is running for attorney general.
Republicans defended the case, saying costs would be minimal and would be far offset by the savings if the lawsuit is successful.
''The return potentially is worth billions,'' said House Speaker Kirk Adams, R-Mesa.
The Republicans' conflict with Goddard comes amid similar jockeying in other states.
In Mississippi and Nevada, Republican governors have pressed Democratic attorneys general to sue. In Washington and Michigan, Republican attorneys general have joined challenges against the wishes of Democratic governors. [NYT 3/30/10]
- GRETA VAN SUSTEREN, FOX NEWS HOST: Well, it's almost a civil war in Michigan over, what else, health care, the Michigan attorney general joining a lawsuit against the federal government. But Michigan Governor Jennifer Granholm says, "Not so fast." And now the attorney general is in a battle with himself since he is also the governor's lawyer. * * *
GOV. JENNIFER GRANHOLM, D - MICH.: Well two problems, Greta. One is that as the state attorney general he represents the state of Michigan as an entity, and I'm his main client. His main client has been one of the governors who has been a co-chair of the governor's task force trying to get in bill through because it helps Michigan.
So he wears two hats. He can file on behalf of himself as the attorney general or on behalf of some other entity or the people. But he cannot file on behalf of the state of Michigan. He does not represent me.
So I've asked him instead, as my lawyer, to file in that very case on the other side, or at least to file an amicus on the other side. I am not an -- I will not allow him to speak for the state government when the state government has been seeking to get this reform passed, because it helps the state of Michigan.
VAN SUSTEREN: Before I get to the question of the intrigue of having them both sue for the state and have to represent you in fighting that suit he has filed, let me ask you this -- in Wisconsin for instance, I've learned the other night, is that the attorney general cannot file a lawsuit without specific permission on behalf of the governor or the legislature. Do have you that specific requirement in your state?
GRANHOLM: Yes. If he's representing the state of Michigan, that means he's representing the executive branch, the agency, the governor. He cannot file against my wishes on the side that he has filed. He can file as the attorney general. He can file on behalf of the people. But he cannot file on behalf of the state government and the state of Michigan because he's my client.
VAN SUSTEREN: So he could legitimately go forward and say I don't represent the state of Michigan, that's the governor, but I represent the people and I'm going forward. He could proceed that way?
GRANHOLM: He would proceed that way. He has the constitutional authority to do that. But as my lawyer, he cannot represent me or the state government.
And he would have to -- I'm asking him to file on the other side to intervene on the other side so that my wishes as governor and the state agencies are represented in that suit. That's the first problem, Greta.
And I mentioned there are two problems. The second problem of course is that the claims just don't have merit in terms of the commerce clause and Congress' ability to regulate. So I haven't found a single constitutional scholar who thinks that this has actual merit. So I think on both substance and process, he's got a problem.
VAN SUSTEREN: Let me go back to the other one. What would typically happen, if he weren't your lawyer, because you're the governor, you would get another lawyer and that lawyer would send a letter saying don't do it.
But because of the peculiar nature and relationship between the attorney general and the governor in Michigan, he in essence has to go write himself a letter saying don't represent the state, right?
GRANHOLM: Sort of. He has to set up a conflict wall inside the office and have a lawyer or a couple of lawyers representing the state government, the state of Michigan.
I was the attorney general of Michigan too, and I had conflicts, often political conflicts with my predecessor, who was a Republican and I'm a Democrat. So I understand this happens. But what you can't do is go in against your client's wishes and purport to represent that client, and that's what he has done. [Fox News 3/30/10]
- Health care legislation has passed, but several state attorneys general are contesting the measure on constitutional grounds.
The officials question whether the federal government can force citizens to purchase health insurance as one of the provisions of the law requires. Twelve states have joined a lawsuit filed in Florida by that state's attorney general, Bill McCollum, who called the mandate "an unprecedented encroachment on the liberty of the American people."
This effort, however, seems to divide on partisan grounds. All of the challenges are coming from Republicans, some of whom are meeting resistance from Democratic governors.
This is true in Colorado, Michigan, Pennsylvania and Washington, where Democratic governors object to the stand taken by their Republican attorneys general. These governors have written U.S. Attorney General Eric H. Holder Jr. to offer their support for the White House's position against their own states, the New York Times reports.
Meanwhile, Republican governors in Georgia and Mississippi are upset with their Democratic attorneys general because they will not join the lawsuit.
To complicate matters, some of the attorneys general are running in elections this year to succeed the governors they oppose on this matter.
Georgia Republican Gov. Sonny Perdue, who will leave office in January due to term limits, has been rebuffed by his attorney general, Democrat Thurbert E. Baker, who said that the lawsuit has "no legal merit" and will "cost the taxpayers of Georgia significant amounts of hard-earned taxpayer dollars."
Moreover, he told the Times, federal law takes precedence over state actions. "This is not a tough legal question," he said.
When the governor and attorney general disagree over a question of federal litigation, who actually speaks for the state? Does the governor have ultimate control?
In Michigan, Pennsylvania, Washington and elsewhere, such questions are being debated, rather vigorously in some cases. [Watertown NY Daily News 3/30/10]
Attorneys general are charged with representing the governor and executive branch agencies, but also may initiate and intervene in litigation in the interest of the citizenry. It is not uncommon, given that governors and attorneys general are elected independently and can be from opposing parties, that they clash over questions of authority.As a point of interest, Indiana's attorney general position is statutory, not constitutional. There have been times when the governor and elected attorney general of Indiana were of different parties. And the office has not always been elective -- under earlier statutes, the attorney general was appointed by the Indiana governor.
In Michigan, Gov. Jennifer M. Granholm, a Democrat who cannot run again this year because of term limits, wrote a blistering letter last week to Attorney General Mike Cox, a Republican who announced on his Web site that “Michigan has joined” the health care lawsuit.
Ms. Granholm, a former attorney general, chastised Mr. Cox for “speaking for the State of Michigan” and told him his stand was “directly contrary to the position of this administration.”
She questioned whether he had the constitutional authority to supersede her own. And she directed him, as her lawyer, to assist in the defense of the case, asking his office in essence to work against itself. Mr. Cox, who is running in a competitive primary to succeed Ms. Granholm, said he was obligated to do so.
“I’m perfectly willing to let her exercise her option of being wrong and being represented while she does so,” Mr. Cox said. “The reality is that the federal court recognizes the attorney general as the voice of the state in federal litigation.”
Posted by Marcia Oddi on March 30, 2010 02:43 PM
Posted to General Law Related