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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:

And this story from Kevin Sack of the NY Times, dated 3/27/10, gives an excellent overview of all the current disputes. A quote:
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.

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.”

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.

Posted by Marcia Oddi on March 30, 2010 02:43 PM
Posted to General Law Related