The Role of the State Attorney General Mr. James Tierney and Mr. Peter Brann Spring 2017

TAKEHOME

Available for download: Starting at 12:30am on Wednesday, April 26th. Due 8 hours after download, or by 4:30pm on Friday, May 5th, whichever time is earlier.

                        1.   You are the Attorney General of the State of Griswold, and you were re–elected to this position in November 2016.

To call your relationship with the current Governor, Janet Ames, who also was re–elected in November 2016, rocky is an understatement. Not only are you members of different parties, but you are polar opposites. Although state statutes give the Griswold Attorney General responsibility for all state litigation, the Griswold Supreme Court has never ruled whether Griswold is a Feeney state or a Deukmejian state, and neither you nor the Governor are confident how that fight would turn out.

When you refused to join several multistate lawsuits or to sign onto amicus briefs on several hot button issues, the Governor went ahead without you, joining the law suits and amicus briefs as “Governor Janet Ames, pro se.” She recently signed onto a major amicus brief in the U.S. Supreme Court this way. Your Solicitor General tells you that you could simply inform the Supreme Court that the Governor has no authority to take a position in litigation, and get her stricken from the case. What do you do?

Meanwhile, the Governor is outraged by your repeated refusal to go along with her proposed changes to Griswold’s Medicaid program. Assistant Attorneys General keep telling the Department of Health and Human Services (“DHHS”) that their desired actions are illegal. So, DHHS has hired a number of lawyers, most of whom are not licensed in Griswold, in what are claimed to be policy roles, but, in fact, are in–house counsel roles. Your Deputy Attorney General in charge of the Criminal Division tells you that you could prosecute the out–of–state lawyers for the unauthorized practice of law.

What do you do?

Finally, the Governor just convinced the Legislature to cut your budget 15%.

Looking over the generic Attorney General organizational chart, what functions would you cut back or eliminate, and why? Conversely, are there any Attorney General functions that you think are so important that they should be increased, even if it leads to bigger cutbacks in the functions that you think should be cut back or eliminated?

2.   You are the Deputy Attorney General in charge of the Public Protection Division (the “white hat division”) of the Attorney General’s Office in the State of Austin.

In addition to charities, consumer protection, and antitrust, the Public Protection Division has responsibility for enforcing Austin’s labor laws. The Division is financed through the Attorney General’s budget, as well and the Attorney General’s share of multistate consumer protection settlements.

In recent years, the number of often anonymous complaints about wage and hour violations, particularly involving the immigrant community, has skyrocketed.

Unscrupulous employers have been hiring undocumented, low wage workers with limited

English skills and then refusing to pay them overtime or even minimum wage on the assumption that they won’t complain or sue. What steps do you think should be taken to address this problem?

Assume that one of the things you do is launch an investigation, and that word of your investigation becomes public. The powerful Speaker of the House has well–known anti–immigrant views. He has previously blasted the Attorney General for “wasting taxpayer money” to pursue cases on behalf of “illegals” instead of focusing his energy on cases involving the “hard–working citizens of Austin.” When the Speaker calls you to discuss your investigation, what do you do?

Assume that you then bring a lawsuit against one of the worst offenders, a large day laborer company. After acrimonious discovery in which you finally obtain the personnel and wage records for over 300 current and former employees, who are predominantly immigrants, you then negotiate a $1 million settlement to pay these current and former employees back wages and overtime.

Immediately after this settlement is announced to great fanfare, an official from

U.S. Immigration and Customs Enforcement (“ICE”) calls you and asks for the names and addresses of each of the current and former employees who are going to get paid under your settlement. What do you do?

3.   You are the Chief Deputy Attorney General of the State of Lewis.

The State of Lewis has been hit hard by the opioid crisis—more people in Lewis died from drug overdoses than from murder last year. Particularly in its rural communities that have seen its mills and small manufacturing facilities close, the crisis has reached epidemic proportions.

The Attorney General has asked you to come up with a proposal to address this crisis, but with the caveat that the disadvantages cannot outweigh the advantages. You convene a meeting of Assistant Attorneys General to come up a plan.

First, from the Criminal Division, you are told that they could ramp up prosecutions against drug dealers, perhaps charging them with manslaughter in drug overdose deaths, but because these cases are more difficult and time intensive, they would probably have to cut back on prosecutions of other violent crimes.

Second, from the lawyer representing the Department of Corrections, you are told that they could work with the Department to divert addicts from prisons to treatment facilities, but this could jeopardize significant federal funding due to the current federal Administration’s “war on drugs” approach.

Third, from the lawyer representing professional licensing agencies, you are told that they could pursue licensing actions against doctors who run “pill mills,” but because these cases are more difficult and time intensive, they would probably have to cut back on enforcement actions against unlicensed and incompetent professionals.

Fourth, from the lawyer handling consumer cases, you are told that you could bring deceptive advertising cases against major pharmaceutical companies for failing to adequately disclose the risks of opioids, but it would take years to win such a case against well–heeled defendants, and meanwhile it would divert resources from other small, run– of–the–mill consumer cases.

Fifth, from the Chief of Staff, you are told that they could work on an aggressive education and outreach campaign, but other state and federal agencies already are engaging in such (apparently ineffective) campaigns and potential 2018 opponents to the Attorney General are already labeling her as “soft on crime.”

How would you rank these recommendations to the Attorney General, and why? Are there other people in the Office who you would talk to, and are there other things that you would suggest, and what are their advantages and disadvantages?

4.   You are the Deputy Attorney General in charge of Civil Litigation in the State of Pound.

The Legislature passed, and the Governor signed, a bill containing the most restrictive abortion provisions in the country. Some of these provisions had been invalidated in other Circuits, while other provisions had been upheld in different Circuits. Neither your Circuit nor the Supreme Court has ruled directly on any of the strictest provisions.

As one of the top litigators in the Office, the Attorney General asks you to handle this matter. On a professional level, you have some questions about the constitutionality of the new statute, at least for some of the most stringent provisions, and on a personal level, although you are not strongly pro–life or pro–choice, you have qualms about some of the strictest restrictions. What, if anything, do you do about this situation?

A week later, the Attorney General tells you, “This is your lucky day! We have just been approached by an aggressive, pro–life legal defense fund that will handle the case for the State for free!” When you ask what your role is, the Attorney General said you should supervise outside counsel like the court described in State v. Lead Industries.

You have a tough time working with the outside lawyers, who keep wanting to take extreme legal positions and to use highly inflammatory language in the briefs, which you know the long–time local federal judge will loathe, and may even hold against the State in future Attorney General cases. The outside lawyers regularly reject your