The Role of the Attorney General Fall 2018

Professors Peter Brann and James Tierney Available for download: Beginning December 10, 2018

Must be electronically submitted by: 8 hours from download or by 4:30 pm on December 19, 2018, whichever is earlier.

Instructions

The exam mode for this examination is TAKEHOME. Students will be able to download the question beginning at 12:30 am on December 10, 2018, until December 19, 2018. Once you view the questions, you will have 8 hours to submit your answer.

This exam is 11 pages long – including these cover instructions. Please check to see that you have all 11 pages. Please read these instructions and the entire exam carefully before beginning a response.

While taking this examination you may consult any materials that you are able to access including but not limited to the assigned course materials and any of your own or other class member’s outlines or notes. You may engage in legal research if you believe it to be relevant to your answers, but this is not an exam about the proper resolution of a legal issue. Your answer must be entirely your own work. You may not discuss the examination with anyone, either while taking it or thereafter until everyone has taken the exam.

The purpose of this seminar has been to promote an understanding as to the law and culture surrounding the office of state attorney general. As we have learned, State Attorneys General are bound first by the law and the constitution. We have also learned that Attorneys General possess a culture of problem solving that is bound by resources, politics, relationships and the potential of other local, state and federal actors who can be either in support or in opposition to an attorney general initiative.

The goal of this examination is both to continue your education about Attorneys General as well as to assess what you have learned. The exam is drafted in a way that will help you expand your ability to use your own

reflective legal judgment consistent with the public interest. We are therefore looking for answers that indicate your grasp of the law relating to Attorneys General and public policy that we have covered this semester. There is a 5,000 word limit for the entire exam.

In answering these questions, you should refer to what you have learned in this class, including statutes, structure, ethics, statutory powers, common law authority, the relationship with the federal government, and available resources. Do not exclude information learned in other classes and in your own life experiences.

Unless instructed otherwise, in answering the questions assume that you are operating within states where the chart defines the organizational structure of the Office of Attorney General. In each State, the State Supreme Court has not yet ruled definitely whether that State is a Feeney State or a Deukmejian State.

While the questions contain all of the facts required to respond, your answer may include the need for verbal communications, investigations, or informal meetings that might uncover other additional “facts.” As long as you clearly state the “facts” the office discovers and therefore is relying upon, feel free to incorporate them into your answer. Be mindful of existing expertise and resources within other state and federal governmental agencies, as well as the private sector, academia, and the private bar. As we have discussed, simply because the Attorney General has jurisdiction does not mean that the office is the only agency capable of addressing the situation. If you believe that political issues are relevant, feel free to address them and afford to them what weight, if any, you deem appropriate. Please remember that this seminar has been about law and policy, but not politics.

Try not to use the word “however.” (This is a pet peeve of Professor Tierney. Professor Brann, however, does not share this concern.)

END OF INSTRUCTIONS

Questions

1.                   You are the newly elected Attorney General of the State of Oxford. Congratulations, but there is trouble brewing. You will be sworn in on January 2, 2019.

The State of Oxford is a so-called purple state, and the newly elected Governor, Sally Knight, is from the other party. Knight ran on a slogan of “Fix the Damn Potholes!” and now has her sights on the Attorney General’s Office. She was quoted in the press recently: “The Attorney General should focus on the problems here in the State of Oxford, and stop spending the time and money on political lawsuits against the President, and multi-state shakedown lawsuits against big corporations.” Governor-elect Knight has proposed to reduce the budget for the Attorney General’s Office by 15%.

As part of your transition, you meet with the current senior staff from the Attorney General’s Office. The Deputy Attorney General in charge of the Consumer Division tells you: “She’s just mad because we had told her that we were just about to file suit as part of a multi-state investigation into Knight’s tech company. Her company is engaging in unfair and deceptive practices through its sale of customer data in violation of its privacy policy. The case is not yet public and I’m not sure when the other States will be ready to file. It may be after you are sworn in, but I’m not sure.”

What, if anything, do you do in light of this revelation?

The legislature is equally dived between the two parties, and you have to take the threat of a 15% budget cut seriously in setting your priorities as the new Attorney General. If you have to make a 15% budget cut in the office, where would you look to cut back or eliminate from the current Attorney General responsibilities, and why, and what, if anything, would you do to cushion the blow caused by such cuts? Be specific as to where you believe the cuts should be made.

To make matters worse, presumably you ran because there were things that you wanted to do. What do you think should be the additional or different priorities of the Attorney General’s Office, even if it leads to additional cutbacks in current responsibilities, and why? Again, please be specific.

2.                   You are the Deputy Attorney General of the State of Hancock in charge of the lawyers who represent the Department of Environmental Protection (“DEP”). And someone is making you an offer you cannot refuse.

A West Coast billionaire environmentalist, Jennifer Lewis, has teamed up with well-known top tier law school, to create the Lewis Honor Fellowships for recent law graduates to work on climate change. The Lewis Honors Fellows would be paid by the Lewis Foundation, and would be offered, free of charge, to State Attorneys General around the country to work as Assistant Attorneys General on climate change projects and litigation under grants approved and financed by the Lewis Foundation.

While your boss, the Attorney General, would get the final say over hiring, the Lewis Foundation would conduct the initial screening of the applicants, and the Lewis Honors Fellows would be paid significantly more than the Assistant Attorneys General who currently represent the DEP (some of whom have been working in the office for 20 years). You are not so naïve as to not understand that the successful applicants are more likely to come from so-called top tier law schools, as opposed to the University of Hancock Law School, which most of your legacy staff attended.

The head of the Lewis Foundation has offered two of these Lewis Honors Fellows to work in your office, and you know your boss has been quoted repeatedly as saying that “climate change is an existential threat. We must do something now to save our planet.” You also know that despite these grandiose statements, he hasn’t done a thing about climate change.

What do you do and say in response to this offer, and why? Whether based on your recommendation or over your objection, two

Lewis Honors Fellows are hired for a two-year fellowship in your office. You

have to admit that they are terrific lawyers who do exceptionally good work. Because they are not from Hancock, you doubt that they will stay in the office after their two-year fellowships end.

Your office has been part of a multi-year, multi-state, investigation into large oil companies’ alleged misrepresentations concerning climate change that has been bogged down in preemptive lawsuits filed by the oil companies around the country. (For purposes of this question, do not be concerned about the substance of such lawsuits.)

In an effort to shake things up, you decide to replace the 20-year veteran from your office who has been representing Hancock in the investigation and lawsuits, Assistant Attorney General Carmen Curbelo, with one of Lewis Honors Fellows. Curbelo, who may not have the same pedigree as the Lewis Honors Fellows, is competent and hard-working, and unlike the Lewis Honors Fellows, will still be working in Hancock in two years. Curbelo comes to you and says: “This isn’t fair. Just because they have a fancy degree, they shouldn’t be allowed to waltz in here and get the plum assignments. If I’m replaced in this case, I am going to quit.”

What do you say and do in response to this?

After weathering that storm, the other Lewis Honors Fellow, Martha Coffman, comes to you quite excitedly one day. She explains that the Lewis Honors Fellows meet quarterly at the San Francisco headquarters of the Lewis Foundation—something you hadn’t known—and at the meeting a week ago, senior counsel from the foundation handed out a PowerPoint, a proposed complaint, and a draft press release that would come from the Lewis Foundation. The Lewis Foundation wants every State with a Lewis Honors Fellow to join a lawsuit that is going to be filed in federal court in San Francisco in a couple of weeks. Coffman further explained that while they wanted all of the States to join the suit, the Lewis Foundation would pay for the entire lawsuit, and “the heavy lifting would be done by lawyers who work for the Lewis Foundation.” She also said that the on-going commitment to the participating States to provide Lewis Honors Fellows would be extended for those States that sued.

What do you say and do in response to this?

3.                   You are an Assistant Attorney General in the State of Knox representing the Board of Funeral Home Operators. You are investigating Donovan Funeral Home and its president, David Donovan, concerning a few customer complaints about alleged failure to honor pre-paid burial contracts.

Utilizing the Attorney General’s confidential civil investigative demand (“CID”) authority, you have obtained a large number of documents from the Donovan Funeral Home, including bank records. The bank records don’t match up very well—you can’t trace the money paid with the funerals or cremations provided. When you spoke to their counsel about it, she told you that it was small family-run business and sometimes the money may have gotten comingled with David Donovan’s personal bank account, but all the money was available for the funeral services purchased.

Because spreadsheets are not your forté, and you cannot tell if there is a problem or not, you took the bank records down the hall to the forensic investigator in the Criminal Division who works on the white collar cases. A few days later, an Assistant Attorney General in the Criminal Division, Dennis Young, stops by your office, and says: “These bank records look promising. I think there could be a theft case here, and I am going to open a file on this one, but I don’t see enough yet to convene a grand jury. What else do you have for evidence in this case?”

What do you say and do in response to this?

Regardless, you were thinking of using your CID authority to take a confidential deposition of David Donovan. To prepare for the deposition, you would really like some help understanding the cash flow in the bank records,

and you would like the Criminal Division investigator to help you decipher them. When you mention it to the investigator, he says that it’s fine with him, but just check with Young. When you call Young, he says: “You want to take Donovan’s deposition using your CID authority? Perfect. That way he won’t get wind of my criminal investigation. Just don’t forget to send me a copy of the transcript afterwards.”

What do you say and do in response to this?

Before you can take the confidential deposition of David Donovan, opposing counsel contacts you to settle the matter against both Donovan Funeral Home and David Donovan. She tells you that they have discovered some

“bookkeeping” errors, and her clients are willing not only to pay back all the missing money, but they’re willing to pay the maximum fine and agree to some licensing restrictions. The offer exceeds what you could obtain if you pursued a licensing action, so you accept the offer. Just before the papers are signed, Donovan’s counsel asks you: “We’re looking for 100% peace. Will this be a complete resolution of this matter?”

What do you say and do in response to this?

4.                 You are the Chief Deputy Attorney General of the State of Somerset. You have been left to deal with the aftermath of the recent election.

The voters just passed by a large margin a citizen initiative to legalize marijuana in the State of Somerset. This is quite a turnaround because Somerset used to have one of the most stringent marijuana laws in the country— possession of an ounce of marijuana used to be a felony.

You convene a meeting of various divisions in the office to discuss the ramifications of the new law. Unfortunately, the Attorney General is off lecturing at the NAAG conference for newly elected Attorneys General on your office’s organizational “chart” that is the gold standard of Attorney General office organization. Meanwhile, he did not provide you with any guidance—he did not take a position on the initiative (“that’s up to the citizens”), and he declined to issue any formal opinions concerning the legal implications of the initiative (“I agree with Tierney that opinions are a waste of time”).

The first to speak up is the Deputy Attorney General in charge of the Criminal Division, Jackie Faso, who says that she received a call from a senior lawyer at the U.S. Department of Justice (“DOJ”), who reminded Faso that possession of marijuana was still a crime under federal law. The DOJ official also reminded Faso that the federal government paid 90% of the cost of the Somerset Drug Enforcement Agency, which was leading the fight against opioids in the State of Somerset. The DOJ official asked Faso if the Attorney General was going to keep prosecuting people for marijuana possession and sale under federal law (the state lawyers are all cross-deputized as Assistant U.S. Attorneys), or if the federal government should reallocate resources from the Somerset Drug Enforcement Agency to a more deserving State.

What do you say and do in response, and why?

Next up is the Solicitor General, Susan Taylor, who says that she has been fielding calls from defense counsel concerning the effect of the new marijuana law. Somerset has a tough “three strikes” law in which conviction of three felonies leads to a mandatory life sentence. In a case pending in the Somerset Supreme Court, in which Taylor’s brief is due in a few weeks, one of the

defendant’s three felony convictions was for possession of one ounce of marijuana (and the other two were for theft to finance his drug habit). Taylor wants to know whether the State should take a different position in the Somerset Supreme Court in light of the citizen imitative.

What do you say and do in response, and why?

The Assistant Attorney General representing the Department of Motor Vehicles (“DMV”), Kathy Yoder, said that she too had a question. Although the citizens may have legalized marijuana, that didn’t change the fact that people who were high shouldn’t be driving. According to Yoder, DMV was about to issue emergency rules that classified driving while high as the same as driving under the influence, and the standard would be based on a highly controversial study financed by the DOJ. Yoder said that the study was “junk science” and the proposed rules were a “bad idea.” Yoder is the Assistant Attorney General who approves DMV rules for legality, and she wants to know if she can refuse to sign off on these rules.

What do you say and do in response, and why?

The Assistant Attorney General representing the Department of Health & Human Services (“DHHS”), Emily Paulsen, has a different problem. Somerset has a state program for disabled veterans that pays for drugs to alleviate chronic pain. Although studies show that, for some patients, marijuana is a cheaper and better alternative than opioids for pain management, Somerset had never allowed the use of marijuana because it was illegal. Paulsen said that representatives of various veteran groups had contacted her and asked her to advise DHHS that it had to change its position in light of the citizen initiative.

What do you say and do in response, and why?

5.                   You are an Assistant Attorney General in the State of Cumberland, handling civil litigation defense of state agencies and state employees. You are handling a lawsuit concerning the suicide of a patient at the Cumberland Mental Health Institute (“CMHI”).

The patient’s children have sued a nurse who was disciplined for signing off on the patient’s unescorted grounds pass, which he used to go drown himself in the river next to CMHI, the nurse’s supervisor who disciplined the nurse, and the Commissioner of the Department of Mental Health (“DMH”), along with others. You are defending all of the state employees who have been sued, and due to budget constraints, you are the only lawyer defending all of the state employee defendants.

When you meet with the nurse, Martha Bishop, she is still angry at having been disciplined following the suicide. “I am being made a scapegoat in this awful tragedy. We nurses work round-the-clock without adequate support, and then take the fall if anything goes wrong.” When you tell her that you are also representing the supervisors, she is incredulous: “How can you be my lawyer when they are trying to pin the blame on me?”

What do you say and do in response to this, and why?

Afterwards, you meet with the nurse’s supervisor who disciplined the nurse, Stephanie Russell, who has also been sued in this matter. When you ask her to tell you what happened, she responds: “Before I tell you anything, I just want to confirm that you are my lawyer, right? What we say is confidential, right?”

What do you say and do in response to this, and why?

Whatever you say to her apparently calmed the waters because Russell then speaks to you at length about the incident. “I really hated to discipline Bishop about this tragic accident. She is one of our best nurses and I am broken up over the situation. I felt I had no choice. The real cause is the chronic underfunding and mismanagement from senior management, but you certainly can’t say anything about that! The Commissioner of DMH made it clear to me that the “public” was demanding “action” in response to this suicide, and I felt that if I didn’t discipline Bishop, I might lose my job. As a single mother taking care of my disabled son, I couldn’t take that chance, so I did what I had to do.”