Law School of Harvard University / 2015-2016

The Role of the Attorney General Spring 2016

Professors James Tierney and Peter Brann

Available for download: Beginning Wednesday, April 27 at 12:30am.

Must be electronically submitted by: 8 hours from download or by 4:30pm on Friday, May 6, whichever is earlier.

Instructions

The exam mode for this examination is TAKEHOME. Students will be able to download the question beginning at 12:30am on April 27 until May 6. Once you view the questions, you will have 8 hours to submit your answer.

This exam is 9 pages long – including this cover sheet. Please check to see that you have all 9 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. The premium should therefore be on insight and not length.

In answering these questions, you should refer to everything you have learned in this seminar including but not limited to 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 the State of Hamilton where the "chart" defines the organizational structure of the Office of Attorney General. Assume further that the Attorney General and the District Attorneys are elected officials. Assume finally that the Hamilton Supreme Court has adopted the law of Feeney v. Massachusetts, 373 Mass 359 (1977).

While the questions contain all of the facts required to respond, your answer may advise the commencing of verbal communications, investigations or informal meetings that might uncover other additional “facts.” As long as you clearly state the “facts” the office discovers and therefor is relying upon, feel free to incorporate them into your answer. You should also recall our conversations as to the “sequencing” of events, e.g. “if we find this, we do that….if we don’t find this, we do something else…” You will also recall our discussions of the use of email. 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 not politics.

Try to not use the word "however." (This is a pet peeve of Professor Tierney.

Professor Brann, however, does not share this concern.)

Questions

1.  You are the Attorney General of Hamilton. Although the State’s economy has been recovering, unfortunately, you have been involved in some bruising battles with the Governor. The Legislature adjourned for the year late last night, and you have just learned that at the Governor’s insistence, your core, non–agency funded budget was cut by 10% when the state budget was approved just before the Legislature adjourned.

You now must decide what to do about the 10% cut to your budget. Looking at the chart and all of the functions that your office performs, what function or functions would you cut back or eliminate altogether? Please explain why you would make the cuts that you would make. Please also explain if there are any alternatives for the function or functions that you would cut back or eliminate, or, if not, why you think that is an appropriate choice.

Part of being Attorney General is setting priorities. Are there any functions, or things that aren’t being done currently, or that you think should be expanded, even if something else must be cut back or eliminated? Please explain why this function should be a higher priority. Also, please describe what additional cutbacks you would make to fund your higher priority.

Interest groups that support you have heard about the midnight cuts to your budget and have offered to “help.” If you are a Democrat, they are donors and supporters who are plaintiffs’ class action lawyers who volunteer to bring consumer and antitrust cases in your name on a contingency basis, or issue–oriented lawyers financed by unions and interest groups who volunteer to defend the State on hot button issues that you care about. If you are a Republican, they are donors and issue–oriented lawyers who volunteer to bring lawsuits in your name against the federal government, or to defend the State on hot button issues that you care about.

Do you accept these offers of assistance, and if so, what, if any, limits do you place on this free assistance?

2.  You are an Assistant Attorney General in the Consumer Division in charge of charities in Hamilton. You receive a call from a former employee of the “Make Hamilton Great Foundation.”

The foundation is very prominent in Hamilton, frequently appearing in the media announcing grants to local worthy organizations that help disadvantaged children, youth, families and seniors in Hamilton. It claims to be the biggest foundation focused exclusively on Hamilton. The Chair of the Board of Trustees is a prominent businessperson and served as the finance chair for the Attorney General’s election campaign.

According to the former employee, the foundation spends an excessive amount of its contributions on salaries and perks for the Executive Director and the Board of Trustees, and that the foundation’s claim on its website that “90% of contributions go to the disadvantaged in Hamilton” is simply false. The whistleblower gave you purloined documents that show that from the $20 million a year in contributions, over $8 million a year goes to salaries and benefits for the Executive Director and the Board of Trustees (including a personal chef, private jet rentals, and luxury European hotel stays), another

$2 million goes to unspecified “operational” costs, and over $4 million a year goes to a private fundraising company affiliated with the Chair of the Board of Trustees.

Although only $6 million or less goes to the disadvantaged in Hamilton, that is still the largest source of revenue for such groups in Hamilton.

Armed with this information, what would you do? Would you contact the foundation to try to resolve this matter, and if so, what would you attempt to accomplish? If not, why not? Would you file a civil action against the foundation or the Executive Director or the Board of Trustees? If not, why not? Would you refer this matter to the Criminal Division? If not, why not?

Before you are able to decide what to do with the information, you do a little more digging because you discover from the foundation’s IRS filings that there was a mysterious payment of $100,000 from the foundation to XYZ, Inc. You discover that the Chair of the Board of Trustees is the sole shareholder of XYZ, Inc., and that its only activity was to purchase $100,000 of television “issue” ads supporting initiatives taken by the Attorney General during his last campaign. Political ads supporting or opposing a particular candidate may be a violation of the federal tax laws, and anyone who participated could likewise be in trouble. On the other hand, these “issue” advertisements could be protected speech.

Do you refer this matter to the IRS or the U.S. Attorney for a federal civil or criminal investigation? If not, why not? Do you consult with others in the office, and if so, who would you contact and why?

Before you can take whatever action you were going to take, you receive a call from the Attorney General, who says “I understand that you have been investigating the Make Hamilton Great Foundation, and you may have some questions. The guy who is in charge of the foundation is a good friend of mine, and the foundation does good, important, work. So, tell me, what has your investigation found out, and what are you thinking of doing?”

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

3.  You are an Assistant Attorney General and the environmental chief of the Hamilton Office of Attorney General. Because your boss believes that climate change is manmade, he recently issued a press release at the same time as the Attorneys General of 20 other states and former Vice President Al Gore. The press release calls for unspecified immediate action, but no one has yet filed a lawsuit. You personally feel very strongly about this issue, and would love the opportunity to file a lawsuit against the large energy companies, although your own scarce resources would of necessity make this a multistate case.

Your boss's press statement said, in part, “We must save our planet from the merchants of total destruction whose greed endangers our very existence as a species.” You deleted the reference to “Exxon” from the Chief of Staff's draft, and inserted the words “merchants of total destruction,” but the earlier draft, including the reference to Exxon, had been circulated already to the other 20 States without your knowledge.

Unknown to you, one of the states has retained plaintiffs’ class action counsel, working on a contingency, who, without telling the other 20 States, issued a lengthy civil investigative demand to Exxon and advocacy organizations that publicly dispute the notion that fossil fuels cause climate change.

Last week, Exxon and these organizations sued all 21 states, including Hamilton, in state court in Texas alleging that a conspiracy of Al Gore, attorneys general, contingent counsel, and environmental radicals has been created to deprive Exxon and the affiliated private organizations of their First Amendment rights. Included in this suit is the treasure trove of emails that circulated among the 21 states, which include the original draft from your boss that included the word “Exxon” that you had deleted.

All 21 states get on a conference call. At the outset of the call, an Assistant Attorney General from another State asks, “Who leaked these emails and draft press releases to Exxon?” Although no one admits that he or she leaked these materials, one of the other Assistant Attorneys Generals concedes that he emailed “a few” of the materials to his Attorney General, who then demanded to see “the entire file.” You and most people on the call believe, but can’t be certain, that this State likely turned over the materials to Exxon or someone else who gave them to Exxon.

What, if anything, do you recommend doing about the State that you believe leaked these materials to Exxon? Please explain your reasoning.

The discussion now turns to the plaintiffs’ class action counsel who sent out the CID without telling anyone, and who, according to Exxon’s complaint, has been actively fighting Exxon in several other class actions, seeking millions, if not billions, of dollars in damages and attorneys’ fees. Under sharp questioning from the career Assistant Attorneys’ General, she argues that she is a lot more interested in suing Exxon for billions of dollars as the best way to stop climate change, and that she intends to pursue this matter as aggressively as she can. All the government lawyers believe that she is only interested in the money.

What, if anything, do you recommend doing about the State that retained the plaintiffs’ class action counsel? Please explain your reasoning.

Shortly after the acrimonious conference call, your Chief Deputy Attorney General summons you and the Chief of Staff to her office. She explains that this Exxon lawsuit is a disaster—the Attorney General is getting pummeled in the press for stomping on the First Amendment rights of Exxon and others, the affiliation with the plaintiffs’ class action attorney is causing heartburn given her terrible reputation, and the cost and distraction of a lawsuit before an elected state court judge in state court in Texas is not something the Attorney General wants or can afford.

She asks for your advice on how to proceed. What do you say in response?

4.  You are the Assistant Attorney General in charge of the Criminal Division of the State of Hamilton. The police have an uneasy relationship with the minority community in the largest city in Hamilton. There have been allegations of racial profiling and excessive force, and civil rights groups asked the Attorney General a year ago to investigate the police department.

Last week, police shot and killed an unarmed male black teenager, and the minority community erupted in outrage. Some of the protests turned violent, and the District Attorney defended the police response to the violent protests as “necessary to stop a few thugs from burning down our city.”

Community activists and ministers have stated that they don’t believe that the District Attorney can fairly investigate this matter anymore in light of what they believe to be his inflammatory comments. The Attorney General and the District Attorney have concurrent criminal authority in Hamilton. The community activists and ministers have come to see you to ask that the Attorney General take over the investigation of the police shooting of the unarmed male black teenager, and to convene a grand jury to indict the police officer.

Do you agree to meet with the community activists and ministers? What do you do in response to their requests that the Attorney General take over the investigation and convene a grand jury?

The head of the police union has stated publicly that he does not believe the Attorney General should take over the investigation of the police shooting because the AG’s Civil Rights Division has been conducting a secret, year–long “witch–hunt” into the police department, and they recently sent the police department an onerous settlement proposal. The union chief thinks that the AG’s Office has a conflict of interest, and he would like to meet with you to discuss this.

Do you agree to meet with the head of the police union? Do you seek out the head of the Civil Rights Division in the Attorney General’s Office to find out more about their investigation? What do you do in response to the claim that this amounts to a conflict of interest?

Assume that the Attorney General’s Office takes over the investigation of the police shooting. A month later, the Chief of Staff contacts you and says that the Attorney General has been asked to speak at the annual meeting of the Sheriff’s Association of Hamilton, and that he really wants to speak about the issue of police shootings and what should be done about this issue.