William Marshall’s 2006 article in the Yale Law Journal analyzes both Feeney and Deukmejian and a series of cases that derived from them.  While numerous cases have been decided on this issue since that time, this article fairly balances the competing pressures and places them in both a historic and contemporary context.   

Professor Marshall served as both the Deputy White House Counsel and as the Solicitor General for the State of Ohio.   

Yale Law Review, 2006

• Original: https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5035&context=ylj
• Archival:  https://perma.cc/XY53-TET6

William P. Marshall, Break Up the Presidency? Governors, State Attorneys General and Lessons from the Divided Executive, 115 Yale L.J. 2445-2469 (2006)

115 Yale L.J. 2446

Yale Law Journal

Symposium 2006

The Most Dangerous Branch? Mayors, Governors, Presidents, and the Rule of Law: A Symposium on Executive Power Essays

BREAK UP THE PRESIDENCY? GOVERNORS, STATE ATTORNEYS GENERAL, AND LESSONS FROM THE DIVIDED EXECUTIVE

William P. Marshalla1

Copyright (c) 2006 Yale Law Journal Company, Inc.; William P. Marshall

ABSTRACT. Proponents of the unitary executive have contended that its adoption by the framers “swept plural executive forms into the ash bin of history.” Virtually every state government, however, has a divided executive in which executive power is apportioned among different executive officers independent of gubernatorial control. Focusing on the Office of the State Attorney General, this Essay examines the state experience with the divided executive and demonstrates that the model of an independent attorney general has proved both workable and effective in providing an intrabranch check on state executive power. The Essay then discusses the potential application of the model of the divided executive at the federal level. For a number of reasons, there has been a dramatic expansion of presidential power in the last half century with the result that Congress and the courts are often no longer able to constrain executive power in a timely and effective manner. In such circumstances, the only possible check on presidential power must come from within the executive branch. Yet the ability of the Federal Attorney General to provide such a check is, at best, illusory because, under the structure of the unitary executive, the Attorney General is subject to presidential control. Accordingly, the Essay questions whether the federal government should borrow from the state experience and make the Attorney General an independent officer.

a. The Argument from Ethics                                                                                                                                                                                                                                            2462

b. The Argument from Structure                                                                                                                                                                                                                                       2464

E. Lessons from the Divided Executive                                                                                                                                                                                                                           2467

II.                                AN INDEPENDENT FEDERAL ATTORNEY GENERAL?                                                                                                                                                                                     2469

A. The Increasingly Powerful (and Unchecked) Presidency                                                                                                                                                                                         2469

B. An Independent Federal Attorney General?                                                                                                                                                                                                               2471

1. Energy and Efficiency                                                                                                                                                                                                                                                    2473

2. Accountability                                                                                                                                                                                                                                                                 2475

3. Separation of Powers                                                                                                                                                                                                                                                      2476

4. Designing the Office of the Attorney General                                                                                                                                                                                                            2477

CONCLUSION                                                                                                                                                                                                                                                                   2478

*2448 INTRODUCTION

Proponents of the federal unitary executive have contended that its adoption by the Framers “swept plural executive

forms into the ash bin of history.”1 The federal model, however, has not been embraced by the states. The states, rather, employ a divided executive that apportions executive power among different executive officers not subject to gubernatorial control.2 In forty-eight states, for example, the Attorney General does not serve at the will of the Governor;3 and in many states, other executive branch officers such as the Secretary of State, Treasurer, and Auditor are also independent.4

The divided executive holds the theoretical advantages of dispersing power and serving as a check against any particular officer’s overreaching, virtues that might be seen as particularly appealing given concerns about executive branch excesses at the federal level. But the structure also potentially undermines the virtues of energy and efficiency, political accountability, and separation of powers that the Framers of the Federal Constitution associated with the unitary executive model. The question then arises as to whether the divided executive provides a viable and workable model for executive power implementation.

Focusing on the Office of the Attorney General, this Essay examines the divided executive. Part I examines the state experience. It provides a brief discussion of the history and evolution of the Office of the Attorney General, explores how the divided executive works in practice, and canvasses the cases that address how conflicts between governors and state attorneys general are resolved. Part I concludes that the divided executive model can foster an intrabranch system of checks and balances without undercutting the ability of the executive branch to function effectively. Part II then probes the question of *2449 whether the federal government should borrow from the state experience and make the Federal Attorney General an independent officer.5 We live in an era of increasing (and, some would say, increasingly unchecked) presidential power. Part II accordingly considers whether the federal government should construct an intrabranch system of checks and balances, consistent with the state experience, in order to guard against executive branch excess. 

I. THE STATE EXPERIENCE WITH THE DIVIDED EXECUTIVE: GOVERNORS AND STATE ATTORNEYS GENERAL 

A.  Common Law Origins of the Office of the Attorney General

The roots of the Office of the Attorney General date back to the thirteenth century, when English kings appointed attorneys to represent regal interests in each major court or geographical area.6 Initially, the attorneys had limited powers, based either on the courts in which they appeared or the business that they were assigned to conduct.7 During the Middle Ages, however, this practice was superseded by the appointment of a single attorney with broad authority, including the power to appoint subordinates to carry out his responsibilities.8 The Attorney General emerged as chief legal adviser to the Crown and was often appointed for life tenure--a practice that continued until the reign of Henry VIII when it was changed to service at the pleasure of the Crown.9

Throughout the sixteenth and seventeenth centuries, the duties of the Attorney General continued to evolve and expand; with eminent tenants such as Edward Coke and Francis Bacon, the Office also continued to gain in prestige.10 The Attorney General was often summoned by writ of attendance to the House of Lords where he was consulted on bills and points of law.11 In 1673, he began to sit in the House of Commons, advising that body and *2450 assisting in the drafting of legislation.12 He also gave legal advice to the various departments of state and appeared for them in court.13

Importantly, during this period, the Attorney General established that his duty of representation extended to the public interest and not just to the ministries of government.14 In fact, by 1757, the Attorney General was able to refuse “to prosecute or to stop a prosecution on the orders of a department of the government, if he disapproved of this course of action.”15 Accordingly, the Attorney General became less the government’s lawyer and more an independent public official “responsible for justice.”16

B.  The State Attorneys General

The Office of the Attorney General was brought over to the colonies, where it was modeled after its English counterpart;17  and at the time of the founding, it existed in all thirteen of the original states.18 The terms of tenure varied considerably. North Carolina, for example, provided for a lifetime appointment by the legislature.19 In New York, the Attorney General was appointed by the Governor with the advice and consent of an Executive Council but he could be impeached and removed from office for “mal and corrupt conduct” only by a two-thirds vote of those present in the Assembly.20 Delaware allowed the Governor to appoint the Attorney General, upon confirmation by the Privy *2451 Council, for a term of five years.21 Rhode Island, alone among the original states, provided that the Attorney General would be popularly elected.22

The Framers of the Federal Constitution apparently placed the Attorney General under the control of the President,23 thereby adopting the model of the unitary executive, at least insofar as they did not directly create separate federal officers independent of the President.24 But the federal model proved to have very little influence over the development of state government. In fact, in the years following the ratification of the Federal Constitution, the states tended to reject the federal model because they were concerned with the concentration of too much power in one executive officer. Ohio, for example, in reaction to a territorial Governor who was perceived to be too autocratic, drafted its first state constitution in 1802 specifically to minimize the authority of the Governor by dispersing executive power over a range of independent executive branch officers.25

As the nation matured, many states created independent attorneys general and afforded the Office even greater autonomy by making it a popularly elected position. Again, the states’ purpose was to weaken the power of a central chief executive and further an intrabranch system of checks and balances. Thus, the Minnesota Supreme Court observed, in reference to the state’s 1851 constitution, that:

Rather than conferring all executive authority upon a governor, the drafters of our constitution divided the executive powers of state government among six elected officers. This was a conscious effort on

*2452 the part of the drafters, who were well aware of the colonial aversion to royal governors who possessed unified executive powers.26

 Accordingly, as the nineteenth century unfurled, most new states provided in their constitutions for the popular election of an attorney general (and other executive branch officials) while many of the established states amended their constitutions to the same end. As a result of this trend, at present, forty-three state attorneys general are elected and forty-eight are free from gubernatorial control.27 Notably, no state has reversed direction and made its Attorney General subservient to the Governor.28

The Office of the Attorney General has now evolved to have jurisdiction over a wide range of matters, although its specific powers vary considerably from state to state. In some states, for example, the Attorney General has statutory authority to bring consumer protection, environmental, civil rights, civil fraud, securities, and antitrust actions; some offices are also charged with maintaining oversight over public lands and charitable trusts.29 Many state attorneys general have significant authority to investigate both governmental and non-governmental misconduct. Attorneys general also play an important role in criminal law enforcement, with some state offices having direct prosecutorial powers or supervisory authority over law enforcement officers.30 Some state attorneys general additionally have broad common law powers to sue in the name of the public interest or in parens patriae.31 Finally, in virtually all states, the Attorney General is designated the state’s chief legal officer.32 The problem, as shall be discussed, however, is that no matter how extensive the Attorney General’s powers have become, they still must be reconciled with *2453 those of the Governor, who, in virtually every state, enjoys the even more expansive charge of assuring that the laws are faithfully executed.33

C.  Governors and State Attorneys General

Not surprisingly, a divided executive creates substantial opportunities and incentives for conflict.34 First, there are matters of simple politics. In states where the Governor and the Attorney General are independently elected, the two officers may come from different political parties with diametrically opposed partisan agendas. If so, they can be expected to be in constant political opposition to each other. Moreover, even when from the same party, the two officers can, and often are, divided by personal rivalries or ideological differences. And even when the two officers agree on a particular issue, they may compete with each other to be the most aggressive in addressing the issue to curry favor with a particular constituency.35 Add to this the political reality that the Office of the Attorney General has long been seen by many of its occupants as a stepping stone to the Governor’s office36 and the blueprint for confrontation and conflict is manifest. Finally, disputes may occur because of the differing visions the officers may have concerning each other’s roles. Governors tend to view attorneys general as subservient officers. But most attorneys general, while acknowledging some obligation to represent the Governor and the other parts of state government, tend to perceive their overriding obligation to be to the broader concerns of representing the state, the law, and the public interest.37

*2454 What is remarkable, then, in reviewing the state experience, is that debilitating conflict has not materialized. This is not to say that serious disputes have never occurred or that governors have never complained about having to deal with independent attorneys general (or vice versa). Certainly they have. And it is also true that the divided executive has occasionally been the target of reforms that would make the Attorney General subject to gubernatorial appointment and removal.38 But history suggests that both governors and attorneys general have generally learned to cooperate effectively within a divided executive framework.

The reasons why cooperation, rather than conflict, has been the rule are not complex. On one side, the Governor, even if he believes he is unduly constrained by an attorney general’s position, has the general incentive to comply because he may not want to be seen as defying the Attorney General on matters for which the public expects that the Attorney General, as chief legal officer, will have greater expertise. A Governor who rejects the Attorney General’s position therefore risks expending political capital by appearing reckless, if not lawless. Moreover, he risks even greater vulnerability on that point if his legal position eventually fails in court.

On the other side, the Attorney General may also be restrained from overreaching because she is aware that her role is, in large part, defined by public expectations and that her primary obligation is to defend, not contradict, the policies of state officers or agencies, except when those policies violate the law.39 Indeed, this understanding is so prevalent that virtually all  of the state attorneys general have institutionalized it in in-house memoranda.40

Many of the more powerful incentives for cooperation, moreover, are mutual. To begin with, as repeat and interdependent players, both sides have the incentive to maintain a functioning relationship to ensure they can fulfill the duties of their respective offices. They may also feel significant political pressure to work together because it will be harmful to both if they are seen as unwilling or unable to work across political divides. The electorate, after all, does not tend to reward those who bring government to a standstill. Further, both sides may be motivated to come together because reaching internal consensus may fortify their actions against third parties. When both the Governor and the Attorney General agree that a course of action is permissible, the authority behind that position is greater than when either party reaches *2455 that conclusion alone. Finally, and perhaps unduly idealistically, the Governor and Attorney General may be united by a common sense of duty. As one court has noted, a divided executive requires the executive officers to “combine and cooperate (even if they have differing policy views and perspectives) to provide an efficient and effective executive branch of government.”41 It may be that state governments traditionally have taken that duty seriously.

D.  The Cases Addressing the Relative Powers of Governors and Attorneys General

Not all disputes between governors and attorneys general regarding their respective powers are resolved internally and some, not surprisingly, proceed to litigation. The relatively few cases addressing intra-executive branch disputes, however, are significant for our purposes in that they provide useful insight into the types of legal conflicts that can be triggered by a divided executive, how courts might approach these conflicts, and, by implication, whether a divided executive is a viable and sustainable structure.42 These cases can be broken into three categories: (1) cases in which the Attorney General chooses to exercise independent legal judgment and either refuses to represent the Governor (or other executive officers or agencies) or takes an opposed position in litigation; (2) independent actions brought by the Attorney General directly against the Governor or other members of the executive; and (3) cases raising the issue of whether the Attorney General has the right to initiate enforcement actions against private parties without the Governor’s approval or in direct contravention of the Governor’s wishes. This Section first canvasses the cases within each category and then evaluates whether the approaches utilized by the courts are effective in furthering the purposes the divided executive is designed to achieve.

1.  The Power of the Attorney General To Exercise Independent Legal Judgment in Litigation

The first and most common category of cases addresses the right of the Attorney General to refuse to take the Governor’s (or other executive officer’s *2456 or agency’s) position in court. Must the Attorney General represent the position of the Governor on a disputed legal issue, or is she free to substitute her own independent legal judgment as to the best interests of the state? The majority rule favors attorney general independence.43 Her primary duty, as the state’s chief law officer, is to represent the public interest and not simply “the machinery of government.”44

In Secretary of Administration & Finance v. Attorney General,45 for example, the Massachusetts Supreme Court held that the Attorney General can refuse to appeal an adverse decision despite the contrary wishes of his executive agency client: “[W]hen an agency head recommends a course of action, the Attorney General must consider the ramifications of that action on the interests of the Commonwealth and the public generally, as well as on the official himself and his agency.”46 An Alabama case, Ex parte Weaver,47 states this principle even more broadly:

The most far-reaching of the attorney general’s common-law powers is the authority to control litigation involving state and public interests. It is generally accepted that the attorney general is authorized to  bring actions on the state’s behalf. As the state’s chief legal officer, the attorney-general has power, both under common law and by statute, to *2457 make any disposition of the state’s litigation that he deems for its best interest.48

Not all states, to be sure, adopt this reasoning. In Manchin v. Browning,49 the West Virginia Supreme Court granted a writ of mandamus requiring the Attorney General to represent the Secretary of State in federal court over the Attorney General’s objection. The court noted that the Attorney General was in a traditional attorney-client relationship with other state executive officers and could not decline representation.50 Thus, the Attorney General’s authority to manage the litigation was limited to developing the case “so as to reflect and vindicate the lawful public policy of the officer he represent[ed].”51

In Santa Rita Mining Co. v. Department of Property Valuation,52 the Attorney General appealed an adverse property tax judgment against the express wishes of his agency client. The defendants successfully petitioned for a special action to dismiss the pending court of appeals action; the Arizona Supreme Court held that the Attorney General lacked the authority to maintain the appeal without the approval of his agency client. The court concluded that the Governor alone was empowered to protect the public interest and ensure that the laws are faithfully executed.53 Accordingly, the Attorney General was bound to represent the position of the executive branch and not his own views of the public interest in order to preserve the appropriate division of powers within the executive branch.

In one unusual case, the court found that the Governor and the Attorney General had concurrent powers. The underlying litigation in Perdue v. Baker54 involved a challenge to the State of Georgia’s reapportionment plan. A lower federal court held that the plan violated the Voting Rights Act. Before the appeals were completed, the Georgia legislature passed a back-up plan to implement if the courts continued to invalidate the original plan. Apparently *2458 favoring the back-up plan over the original, the Governor sued the Attorney General seeking to force him to drop his appeal to the U.S. Supreme Court. The Georgia Supreme Court rejected the Governor’s petition. Explaining that its decision was based in part upon the policy of promoting a system of checks and balances between the two officers, the court held that both the Governor and the Attorney General were entitled to represent the state before the Georgia Supreme Court.55

2.  The Power of the Attorney General To Sue the Governor or Other Executive Officers

The second category of cases comprises those in which the Attorney General sues the Governor or other executive officers. For example, an issue occasionally arises regarding the power of the Attorney General to challenge the constitutionality of a state enactment by suing the state executive charged with its enforcement,56 including the Governor when appropriate.57 In such cases, the majority rule vests power in the Attorney General to bring the action.58 Thus, in People ex rel. Salazar v. Davidson,59 a Democratic Attorney General contended that a redistricting plan signed by the Republican Governor violated the state constitution and sued the Secretary of State to invalidate the plan. The Colorado Supreme Court affirmed the Attorney General’s prerogative, holding that “the Attorney General must consider the broader institutional concerns of the state even though [those] concerns [are] not shared by” other executive officers.60

Case law also supports the power of the Attorney General to sue the Governor over matters involving the Governor’s own actions. In State ex rel. *2459 Condon v. Hodges,61 the South Carolina Supreme Court allowed the Attorney General to sue the Governor for attempting to circumvent the provisions of an appropriations bill. Rejecting the argument that a lawyer cannot sue his own client, the court held that the Attorney General has a dual role as the Governor’s attorney and as the executive official charged with vindicating wrongs against the citizens of the state, with the power to seek legal redress for separation-of-powers violations by other state executive officers.62

Although there are few cases in which the Attorney General directly sues the Governor, Hodges is not the only example. The Mississippi Supreme Court has allowed the Attorney General to intervene on behalf of plaintiff legislators seeking to declare that a Governor’s partial vetoes of certain bills were unconstitutional.63 The Kentucky Supreme Court, although holding that the Attorney General had not justified his claim for injunctive relief on the merits, allowed him to bring an action to enjoin the Governor from being sworn in and acting as a member of the state university board of trustees pursuant to the Governor’s own self-appointment.64 And the Florida Supreme Court allowed the Attorney General to bring a quo warranto action against the Lieutenant Governor seeking his removal because he lacked necessary qualifications.65

Nevertheless, the right of the Attorney General to sue executive branch officers or agencies has not been universally approved. In Arizona State Land Department v. McFate,66 for example, the Arizona Supreme Court held that the Attorney General could not bring suit against a state agency to enjoin its sale of public lands. The court explained that “the Governor alone, and not the Attorney General, is responsible for the supervision of the executive department and is obligated and empowered to protect the interests of the *2460 people and the State.”67 Similarly, in Hill v. Texas Water Quality Board,68 the Texas Court of Civil Appeals held that the Attorney General lacked the authority to bring suit to set aside an agency rule, finding no independent authority for the Attorney General to represent the public interest against the specific interests of his agency client.

3.  The Power of the Attorney General To Initiate Enforcement Actions Against Private Parties

The final category of cases concerns the power of the Attorney General to proactively initiate civil or criminal actions against private parties. This power, needless to say, may have a profound effect on a state’s policy agenda. For example, a governor who promises to create a pro-business climate could be hampered in achieving this result if the state’s attorney general is aggressive in maintaining consumer protection or antitrust actions against the state’s industries. Similarly, a governor who runs for office as an anti-pornography crusader will be seriously limited in his ability to deliver on this issue if the state’s attorney general refuses to bring pornography prosecutions.

Whether the State Attorney General has the power to initiate criminal or civil actions independent of the Governor is largely a function of statutory authority and, particularly in civil matters, whether the Attorney General is deemed to enjoy common law powers. Thus, in Ohio v. United Transportation, Inc.,69 the court held that, because he had common law authority, the Attorney General of Ohio could bring an antitrust action under state and federal law against local taxicab companies without the approval of either the Governor or the General Assembly.70 The court stated that “the broad inherent common law powers of the attorney general in . . . contesting infringements of the rights of the general public” had been long recognized.71 This common law power, moreover, is quite broad. As the court held in Florida ex rel. Shevin v. Exxon *2461 Corp.,72 the Attorney General is entrusted, under the common law, with “wide discretion” and a “significant degree of autonomy” in determining what is in the public interest.73 Indeed, the Attorney General’s common law authority is so unfettered that it may allow her to bring suits in the public interest even when other executive officers or agencies oppose such actions.74

In other states, however, the courts have held that the Attorney General’s powers are far more circumscribed. In State ex rel. Haskell v. Huston,75 for example, the Oklahoma Supreme Court held that the Attorney General must have the Governor’s permission to maintain a civil nuisance action against an oil company because it is within the Governor’s responsibility to see that the laws are “faithfully administered.”76 Moreover, in a few states, not only is the Attorney General prohibited from initiating actions without the Governor’s approval, but the Governor can also compel the Attorney General to prosecute an action even when the Attorney General does not want to proceed.

4.  The Cases in Theoretical Perspective

Some of the results in the cases reviewed in the previous Subsections can be explained simply as the product of statutory interpretation by the courts. The McFate decision, for example, was based on the relatively broad powers accorded to the Governor under the Arizona Constitution compared to the narrow grant of authority vested in the Attorney General.77 In other cases, such as Shevin, when the constitutional and statutory principles were less explicit, the courts had to rely on more general principles.78

*2462 But whether derived from constitutional provision, statutory text, or judicial gloss, two general approaches have emerged in deciding how the powers of the Governor and the Attorney General are to be allocated in a divided executive.  The first, based on ethics, suggests that the conflicts should be resolved in accord with the principles of the attorney-client relationship. The second, based on the structure of the divided executive, looks to the policies and understandings underlying that model as the basis for resolution. Each will be discussed in turn.

a.  The Argument from Ethics

The leading case in support of the position that an attorney general is bound by the principles of the attorney-client relationship to represent the interests of his state officer or agency client is People ex rel. Deukmejian v. Brown.79 As the California Supreme Court stated in that case, there is nothing unique to the duties of the Attorney General that “justif[ies] relaxation of the prevailing rules governing an attorney’s right to assume a position adverse to his clients or former clients.”80 The approach taken in Deukmejian has an initial, intuitive attraction. After all, if the Attorney General is the lawyer and the Governor the client, the normal expectation would be that the former should advance the latter’s legal positions.81 In fact, however, the attorney-client relationship approach is easily dismissed.82

To begin with, this approach ignores the fact that the Attorney General’s role is significantly more complex than that of a private attorney. Since seventeenth-century England, the Attorney General has generally been deemed to represent the “state” or public interest and not only the machineries of government.83 Moreover, in the modern era of expansive government, the Attorney General is also often charged with representing a wide range of state *2463 officers and agencies, many of whom have positions diametrically opposed to each other. Accordingly, and in recognition of this reality, most courts have held that an attorney general does not violate ethical rules when she engages in the dual representation of competing state entities.84 It  is therefore not a giant step to conclude that dual representation of a state entity and the state or public interest is also not an ethical violation and, indeed, a majority of jurisdictions have so held.85

Furthermore, the nature of an independent attorney general belies the conclusion that an attorney general should be ethically bound to represent her officer client. Ethical rules do not provide an attorney with much room to reject the position of her client86 and, if they in fact limited her authority, there would be little reason for an attorney general to have independent  status. Certainly, an attorney general, ethically bound to represent a governor, would not serve as a check on a governor who was intent on exceeding his constitutional or statutory authority. At best, she would be able only to refuse to facilitate the governor’s actions.87

Finally, ethical concerns also weigh against binding an attorney general by the attorney-client relationship. As the Colorado Supreme Court noted in People ex rel. Salazar v. Davidson,88 imposing a rigid obligation on the Attorney General to advance the executive’s positions can undermine the Attorney General’s ethical obligations to uphold the law and constitution when the *2464 Governor seeks to defend a measure that the Attorney General believes is unlawful.89

b.  The Argument from Structure

The structural approach to disputes between the Governor and the Attorney General focuses on the respective roles of the two officers in the divided executive and questions which role deserves particular deference in a specific context. In certain circumstances, specifically with respect to policy judgments, a structural analysis supports the authority of the Governor (or other executive officer or agency) over that of the Attorney General. Consider Motor Club of Iowa v. Department of Transportation of Iowa,90 in which a motor club challenged the validity of a state agency rule establishing a sixty-five foot length limitation for trucks.91 After losing in the trial court, the agency decided against an appeal because a majority of  agency commissioners no longer supported the length limit. The Attorney General, however, attempted to pursue the appeal without agency approval. The court held that the Attorney General did not have the authority to proceed without agency authorization.

From a structural perspective the decision makes sense. After all, if the agency no longer supports its own rule, why should the Attorney General, the chief legal officer, be able to substitute her policy judgment for that of the entity empowered to make the policy decisions?92 Similarly, if the Governor is the officer charged with setting state policy, it makes sense that the Attorney General should defer to the Governor’s (non-legal) policy judgments.

The structural argument, however, favors the Attorney General in matters involving legal, as opposed to policy, judgments.93 Presumably, a primary reason for having an independent attorney general is to allow for independent legal judgment. Empowering the Governor to be the final authority on legal decisions would make this independence a nullity (as well as, nonsensically *2465 enough, vesting in a non-legal officer the power to have the final say on legal meaning).94

To be sure, the line between legal judgment and policy decision is sometimes blurred. (Some might even suggest that all law is policy-based.95) But even if all legal decisions have some policy overtones, as Motor Club of Iowa suggests, not all policy decisions involve law. The truly difficult cases, in this respect, are those in the third category discussed in this Section, dealing with the Attorney General’s power to institute lawsuits against private parties on behalf of the state. No doubt the decision to bring cases such as the antitrust action in United Transportation96 or the civil nuisance action in Haskell97 involves the exercise of legal judgment. But it also involves non-legal considerations that can be integral to a state’s overall policy agenda. Accordingly, whether final authority for such decisions should be deemed to be in the province of the Governor, the Attorney General, or both, may depend on the particular context, or, as is often the case with statutory enforcement matters, legislative intent.

The structural argument more consistently favors the Attorney General in the first category of cases previously discussed, those concerning the power of the Office to refuse to take the position of executive branch officers or agencies in ongoing litigation. First, assuming the Attorney General’s actions are based upon legal, rather than policy, judgments, her authority to refuse to take the executive branch client’s position reflects her structural role as the state’s chief legal officer. Second, recognizing her prerogatives in this respect also furthers the policy of having an executive officer whose fealty extends primarily to the rule of law rather than to the litigation needs of any particular administration.98 Third, allowing the Attorney General to oppose the Governor or other executive branch officer in court reflects another benefit of the divided executive--it promotes a fuller and more thorough examination of intra- *2466 executive disputes, both in court and in pre-litigation consultation, than would occur if the Governor were empowered to impose his position unilaterally.99 Indeed, the values of intrabranch litigation have been implicitly recognized even within the federal executive in cases like United States v. Nixon100 and Tennessee Valley Authority v. United States EPA,101 where courts have refused to dismiss intrabranch litigation as non-justiciable on grounds that the requisite adversarial component was missing when the U.S. government was effectively suing itself.102 Rather, the courts heard both sides of the issues involved, presumably reaching a more considered judgment than might have occurred if the matters had been decided entirely within the executive branch.103 The results in state cases involving intrabranch disputes, one would suspect, would be similarly informed.

Finally, the structural argument plays its clearest role in supporting the Attorney General’s power in the second category of cases, those in which she sues another part of the executive branch for exceeding its authority. Indeed, if the purpose of the divided executive is to create an intrabranch system of checks and balances,104 there is no better mechanism to achieve this result than dividing executive power between a chief executive and a chief legal officer. After all, who other than the state’s chief legal officer is better poised to make the judgment of whether a state officer has exceeded his legal and constitutional authority? (Moreover, because the Attorney General is further removed than the Governor from the political pressures and demands that face *2467 state government,105 she may be able, other things being equal, to approach the issues regarding the bounds of authority more dispassionately.106)

The most compelling structural argument supporting the Attorney General’s authority to police the boundaries of executive power, however, rests in the inherent weaknesses of the alternative solution--specifically with the lack of inherent checks that would occur in a system in which the Governor had the final say. For example, in State ex rel. Condon v. Hodges,107 the  South Carolina Supreme Court permitted the Attorney General to sue the Governor for circumventing the provisions of an appropriations bill. Had the court allowed the Governor to quash the action, the advantages of the divided executive would have been eviscerated because the Governor would effectively have become the judge of his own authority. There would be neither check nor balance in such a structure.108

E.  Lessons from the Divided Executive

The preceding Sections suggest that the state experience with the divided executive and the independent Attorney General hold a number of lessons. First, as its architects intended, the divided executive model disperses power109 and checks executive branch excess.110 Second, under the divided executive, the Office of the Attorney General is, or can be, appropriately independent of gubernatorial control. Neither ethical constraints nor structural concerns, *2468 properly understood, demand that the Attorney General exclusively represent the Governor’s interests. Third, by insulating the Attorney General’s legal authority from gubernatorial control, the divided executive protects against executive branch overreaching by dedicating an executive officer to uphold the rule of law. Additionally, as the example of intrabranch litigation suggests, attorney general independence promotes fuller decision-making before governmental action by assuring consideration of a wider range of concerns than if the Governor acted alone.111 Fourth, the divided executive can be constructed to accommodate a variety of interests. A state, for example, may protect the right of an attorney general to exercise independent legal judgment against the Governor’s position in a particular matter while still requiring the Attorney General to advance the interests of the Governor when her disagreement is based on pure policy112 or upon any other factor deemed to fit best within the final authority of the Governor. In this way, the Governor’s prerogatives can be accommodated as well.

This then leads to a final lesson. The proponents of the federal unitary executive have argued that other structures are destined to fail because they would lead to weakened executives fraught with internal conflict and lack of accountability. The state experience has shown, however, that this has not occurred. After all, the divided executive has been the rule, rather than the exception, in virtually every state for most of the nation’s history, yet there is little to suggest that it has created endemic dysfunction. The final lesson from the state experience with the divided executive, in short, is that, despite the doubts of the unitarians, the structure has been proven to work. The next Part, accordingly, will ask whether the model may also be appropriate for the federal government.

***

CONCLUSION

The debate over the unitary executive has tended to disregard the state experience, although virtually every state government has a divided executive structure. As the state experience demonstrates, a divided executive presents its share of concerns. Proponents of the unitary executive correctly point out that the structure can impose inefficiency and coordination costs. But the structure offers benefits as well. State attorneys general who are not under the control of governors are freer to offer objective advice and better able to act in accordance with the rule of law rather than in the pursuit of a particular political agenda. An independent attorney general’s ability to do so without imposing substantial burdens on the efficacy of state government makes the model an attractive candidate for adoption at the federal level. The current presidency has the potential of becoming a law unto itself as the expediency and demands of modern government have, in some critical areas, freed the President from the effective oversight of the other two branches. At the same time, the President’s ability to control the Office of the Attorney General makes him effectively the only arbiter of the legality of his actions. An independent attorney general, in the form of the state divided executive, may therefore be an *2479 appropriate model from which to reconstruct a workable system of intrabranch checks and balances.

Footnotes

a1                 AUTHOR. William R. Kenan Distinguished Professor of Law, University of North Carolina at Chapel Hill. I am grateful to Elizabeth Ferrill and Tyler Tarrant for their research assistance. I would also like to thank Hal Krent, Jim Tierney, and (especially) Kara Millonzi for their helpful comments and suggestions.

1                   Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 Ark. L. Rev. 23, 25 (1995).

2                   Patrick C. McGinley, Separation of Powers, State Constitutions & the Attorney General: Who Represents the State?, 99 W. Va. L. Rev. 721, 722 (1997).

3                   The Attorney General is independently elected in forty-three states and is appointed by the legislature in Maine and the Supreme Court in Tennessee. Council of State Gov’ts, The Book of the States 268 (2005). In New Jersey, New Hampshire, and Hawaii, the Attorney General is appointed by the Governor but is not removable at will. See Haw. Const. art V, § 6; N.H. Const. pt. 2, arts. 46, 47, 73; N.J. Const. art. V, § IV, paras. 3, 5. Only in Alaska and Wyoming does the Attorney General serve entirely at the Governor’s behest. See Alaska Const. art. III, § 25; Wyo. Stat. Ann. § 9-1-601 (2005).

4                   See Daniel R. Grant & Lloyd B. Omdahl, State and Local Government in America (5th ed. 1986).

5                   This Essay assumes, for purposes of discussion, that making the Office of the Attorney General independent, either by election or appointment, would require a constitutional amendment. See Proposals Regarding an Independent Attorney General, 1 Op. Off. Legal Counsel 75, 77-78 (1977).

6                   6 William Holdsworth, A History of English Law 459 (2d ed. 1937).

7                   Id.

8                   Id. at 460-61.

9                   Id.

10                Rita W. Cooley, Predecessors of the Federal Attorney General: The Attorney General in England and the American Colonies, 2 Am. J. Legal Hist. 304, 307 (1958).

11                6 Holdsworth, supra note 6, at 463.

12                Id. at 465.

• Original Link: https://news.delaware.gov/2008/05/12/delaware-department-of-justices-public-statement-regarding-the-conclusion-of-the-departments-investigation-of-the-delaware-psychiatric-center/ 
• Archival Link: https://perma.cc/NMK3-D4SC 

Posted: Sept. 15, 2007

A-G BIDEN QUIT REPRESENTING PSYCHIATRIC CENTER IN CLASSIC CONFLICT 

By Celia Cohen Grapevine Political Writer

State officials had to scramble to find a lawyer for the vilified Delaware Psychiatric Center this summer, when Attorney General Joseph R. "Beau" Biden III delivered a surprise notice that the Justice Department no longer would provide representation because it was investigating the facility. 

The psychiatric center, then and now, was in dire need of legal advice as the subject of swelling scrutiny by government investigators, legislative overseers and the news media looking into accounts of patient mistreatment, a hostile work atmosphere and mismanagement at the state-operated hospital near New Castle.

The unexpected attorney-juggling arose from a classic bind in a state that invests potentially-conflicting powers -- to prosecute, investigate and also to represent and defend the government -- in the attorney general, its chief legal officer who additionally must keep the will of the voters in mind as an elected official.

This conflict, in fact, occurred even though Biden and Gov. Ruth Ann Minner are fellow Democrats.

The Justice Department's withdrawal as counsel freed it to pursue an investigation through its Medicaid Fraud Control Unit, which checks into charges of the misuse of federal money and the mistreatment of people whose care is provided by the federal dollars. But it left the psychiatric center in the lurch.

Minner administration officials handled this legal crisis by retaining Joseph C. Schoell, the governor's former counsel now in private practice at WolfBlock, to represent the psychiatric center. Schoell took on the assignment in early August at an hourly rate of $300, discounted 20 percent for the state from his regular hourly rate of $375.

"We had an operational agency that was being bombarded with legal and management issues and was left with no immediate legal representation. It clearly took us by surprise. We responded as quickly as possible. Luckily we had a law firm with experience in state government," said Mark T. Brainard, the governor's chief of staff.

The situation reinvigorates a strenuous public policy debate that has simmered for decades, dating back to the last years of Republican Gov. Pierre S. "Pete" du Pont's administration in the mid-1980s and reviewed in depth in the early 1990s by a government reorganization commission that Minner chaired as lieutenant governor.

Both du Pont and the Minner Commission concluded that the state would be better off with the creation of an Office of Executive Counsel, which would report to the governor and be responsible for representing state agencies. The attorney general would retain prosecutorial and investigatory powers and continue to represent the state in litigation.

It never came about, primarily because of vigorous objections from Attorney General Charles M. Oberly III, a Democrat now in private practice, and Attorney General M. Jane Brady, a Republican now on the Superior Court, both three-term officeholders whose combined tenure stretched from 1983 to 2005.

Beau Biden was largely noncommittal. "I understand why these suggestions have been made over the years. Are there potentials for conflict? Yes. If and when those occasions arise, we will take appropriate action," he said.

The arguments on both sides exploit the dual nature of the attorney general as a lawyer and a public official. Lawyers owe essentially ironclad loyalty to their clients. Public officials have a broader portfolio for the state's welfare with a duty to give independent advice.

David S. Swayze, a lawyer who was du Pont's gubernatorial counsel and also served on the Minner Commission, is unwavering in his view favoring an Office of Executive Counsel so that a state agency does not have to rely on a deputy attorney general, answerable not to that agency but to the Justice Department, for legal representation.

"Who has the loyalty of the lawyer? If it is otherwise than the client, it is a breach. This is so foreign to the concept of the attorney-client relationship. It is out of bounds," Swayze said.

Oberly believes the public is served better by making no changes. "It would be incredibly dangerous to tinker with the system. You would destroy the Attorney General's Office as we know it, and we would have a partisan [executive counsel] office that would do the governor's bidding. There will occasionally be a conflict that will arise, but they're overreacting to a problem that really doesn't exist," he said. 

Oberly predicted that an Office of Executive Counsel would create the state equivalent of Alberto R. Gonzales as the counsel to the president and beholden to him. 

The present design certainly has its tensions -- and not just those as dramatic as Biden's decision to investigate the psychiatric center and abandon its representation. For a time Jane Brady was not only the attorney general but a potential Republican candidate against Minner for governor, not exactly someone the administration would want to consult on confidential legal matters. 

The annual budget bill also has been known to exacerbate the conflicts, because sometimes the salary and the supervision of an attorney general come from different sources. "Under the current system, you've had the awkward situation with deputies located in a department and in the department's budget while reporting to the attorney general," said Anthony G. Flynn, a lawyer who was the counsel to du Pont and to Gov.

Michael N. Castle, now a Republican congressman.

 Some agencies have tried to get around the problem by squirreling away attorneys in their administrative offices in something of a shadow Office of the Executive Counsel. As a lawyer aware of the potential for divided loyalties, Democratic Insurance Commissioner Matthew P. Denn brought in Michael L. Vild, a lawyer, to be the deputy commissioner, even though the Insurance Department has a deputy attorney general assigned to it.

Because of the psychiatric center's woes, there could be a new push in the 2008 legislative session for a bill to set up an Office of Executive Counsel.

"We cannot operate with our agencies wondering day to day whether they have legal representation," said Brainard, the governor's chief of staff. "This is an issue we are clearly going to have to look at before January."

RETURN TO COVER PAGE

###

DEPARTMENT OF JUSTICE 820 NORTH FRENCH STREET WILMINGTON, DELAWARE 19801

                                 CONTACT JASON MILLER PUBLIC INFORMATION OFFICER

PHONE (302) 577-8949

CELL (302) 893-8939

Jason.Miller@state.de.us

JANICE FITZSIMONS

PUBLIC INFORMATION OFFICER

JOSEPH R. BIDEN, III

ATTORNEY GENERAL

Media Release

May 12, 2008

Delaware Department of Justice’s Public Statement Regarding the Conclusion of the

Department’s Investigation of the Delaware Psychiatric Center

Delaware Attorney General Joseph R. Biden, III, announced today that the Delaware Department of Justice (DDOJ) has concluded its ten-month investigation of allegations of patient abuse at the Delaware Psychiatric Center (“DPC”).

The DDOJ investigation concluded that there were systemic violations of Delaware’s

Mental Health Patients’ Bill of Rights, 16 Del. C. §§ 5161 & 5162. Such violations included, but were not limited to, DPC’s failure (1) to prevent physical and emotional abuse of patients by employees and other patients; (2) to prevent mistreatment of patients through inappropriate use of medications, isolation, and physical and chemical restraints; (3) to prevent neglect of patients through lack of attention to their physical needs including safety concerns; (4) to prevent the use of unjustifiable force against patients; (5) to provide to each DPC patient care and treatment suited to the patient’s needs, skillfully, safely and humanely administered with full respect for the patient's dignity and personal integrity in a setting and under conditions that restrict the patient's personal liberty only to the extent required by the patient's treatment needs, applicable law and judicial orders; and (6) to provide each patient with an outcome-oriented, individualized, written treatment plan, treatment based on such plan, periodic review or revision of the plan consistent with treatment progress, and a description of treatment and other support services needed upon discharge.

As a result of this investigation, the DDOJ prosecuted and convicted two members of the DPC staff: Woods Etherington and Anthony Liggians.

In addition to holding staff criminally liable and in order to remedy the systemic violations of the Mental Health Patients’ Bill of Rights, the DDOJ and the Delaware Department of Health and Human Services (“DHSS”) have entered into a legally binding “Memorandum of Agreement Between the Delaware Psychiatric Center and the Delaware Department of Justice to Ensure Enforcement of and Compliance with the Mental Health Patients’ Bill of Rights at the Delaware Psychiatric Center” (“Memorandum of Agreement”).

The Memorandum of Agreement contains a comprehensive plan of action listing the necessary corrective measures and accomplishment dates that the DPC must meet in order to fully comply with the Delaware Mental Health Patients’ Bill of Rights.

These measures include but are not limited to: (1) submission of a protocol and set of procedures governing the use of its currently deployed system of video-monitoring throughout DPC patient areas as a management and prevention tool for the purpose of ensuring patient safety and quality of care; (2) identification of the categories and definitions of incidents to be reported and investigated; immediate reporting by staff to supervisory personnel, DPC’s director, and State officials of serious incidents; and the prompt reporting by staff of all other unusual incidents, using standardized reporting across all settings; (3) mechanisms to ensure that, when serious credible allegations of abuse, neglect, and/or serious injury occur, staff take immediate and appropriate action to protect the individuals involved, including removing alleged perpetrators from direct contact with individuals pending the investigation’s outcome; (4) adequate training for all staff on recognizing and reporting incidents; (5) notification of all staff when commencing employment and adequate training thereafter of their obligation to report incidents to DPC and State officials; (6) posting in each patient care unit a brief and easily understood statement of how to report incidents; (7) procedures for referring incidents, as appropriate, to law enforcement; (8) mechanisms to ensure that any staff person, individual, family member, or visitor who, in good faith, reports an allegation of abuse or neglects is not subject to retaliatory action by DPC and/or the State, including but not limited to reprimands, discipline, harassment, threats, or censure, except for appropriate counseling, reprimands, or discipline because of an employee’s failure to report an incident in an appropriate or timely manner; and (9) mandatory investigation of the criminal history and other relevant background factors of all staff, whether full-time or part-time, temporary or permanent, or a person who volunteers on a regular basis and performance of drug testing of any person engaged in direct patient care.

The citation of the case is People Ex. Rel Salazar v. Davidson, 79 P. 3rd 1221 (2003) .   

Denver Post

AGs' powers a subject of contention

By Julia C. Martinez Denver Post Capitol Bureau

Wednesday, December 03, 2003

Monday's Supreme Court decision on redistricting affirms the power of Colorado attorneys general to battle laws they consider against the public interest.

But critics said Tuesday that the state's top law enforcement official has been given new powers and will stampede over the legislature and the governor.

The Colorado Supreme Court ruled unanimously Monday that the attorney general has the power and duty to sue the state to protect and promote the public interest.

"The Supreme Court has mounted the attorney general on a white horse and allowed him to charge into the middle of legislation any time they want to," said state Senate President John Andrews, R-Centennial. "I'm shocked and distressed that the court is setting up the attorney general as sort of a fourth branch of government here."

Attorney General Ken Salazar said the fears are unfounded.

"What the Supreme Court did was simply affirm the powers of the attorney general as an independently elected official," he said.

"These are not new powers. These are powers that have been exercised by attorneys general in Colorado for 127 years. These are powers exercised by attorneys general across the nation on an ongoing basis."

Salazar, a Democrat, had sued the state to overturn the redistricting law, but Republicans challenged the attorney general's power to sue his own client. Salazar's lawsuit marked the first time since 1905 that the state's top law enforcement official had taken such action.

Professor Robert Hardaway of the University of Denver School of Law, a former deputy district attorney in Arapahoe County, said the court put too much emphasis on the fact that the attorney general is elected independently of the executive branch.

"I think it's a leap to say that because the attorney general has a separate electoral base, he can take positions different from the governor, which violates the basic principle of separation of powers," he said. "There are three branches of government, and when you start splitting every one of them down, you can ultimately get chaos."

Colorado is one of 43 states where the attorney general is elected. In five states - Alaska, Hawaii, New Hampshire, New Jersey and Wyoming - the attorney general is appointed by the governor. In Maine, the legislature picks the attorney general by secret ballot. In Tennessee, the

Supreme Court makes the selection.                                                                                                1

The Nebraska article depicts the frustration of an attorney general with a client state agency No Charges to Be Filed In Prison Sentence Screw-Up, Nebraskawatchdog.Org, November 24, 2014. 

Bruning: No charges to be filed in prison sentence screw-up By Deena Winter / November 24, 2014 / 8 Comments

LINCOLN, Neb. — An investigation into the prison sentence miscalculation scandal concluded that while state employees may have been incompetent, lazy and downright bad at their jobs, no crimes were committed.

“These were lazy bureaucrats disinterested in doing their job, which is not criminal,” said Attorney General Jon Bruning. “There’s no bombshell. This is a story of a very small handful of government workers who didn’t do their jobs and created a mess.”

Bruning announced the decision not to press charges Monday at a joint press conference with Lancaster County Attorney Joe Kelly, who also looked at the state Highway Patrol investigation and came to the same conclusion. Bruning also released a thick binder of investigative documents to reporters, in the interest of transparency.

The prosecutors looked at charging a handful of state employees, past and present, with official misconduct or obstructing government operations, but couldn’t prove intent. The maximum for both charges is one year in prison.

“Incompetence or negligence is not a crime under the applicable statutes,” Bruning said. “What the facts showed me was that this was incompetence, ineptitude, negligence — but not criminal intention.”

The investigation was launched after the Omaha World-Herald reported in June the prison system has been incorrectly calculating sentences for some prisoners for nearly 20 years, even after 2002 and 2013 state Supreme Court rulings clarifying the proper process. Hundreds of prisoners were released too early or scheduled to be released too early.

Bruning said he was embarrassed, disappointed and angered by the level of incompetence displayed by some state employees, particularly former lead attorney George Green, who retired rather than be fired.

“If I thought we could ethically bring charges, we would,” Bruning said. “The incompetence displayed in this case does not reach the level of a crime.”

Kelly said one of the problems is corrections employees still do some of the sentence calculations by hand — the same way they did it in the 1980s. He said there should be a way to completely computerize the calculations and eliminate human error.

Four corrections employees have already been disciplined in connection with the scandal. Bruning said the two prison attorneys who lost their jobs deserved to lose their jobs.

The attorney general aimed his harshest criticism at the former lead prisons attorney, Green, calling him lazy. Before the prison scandal broke, he said he’d “heard stories” about Green being “perennially unprepared and unhelpful if you ran into him at corrections.”

“He was not known as a bright light for a long time,” Bruning said.

He was less critical of former records manager Jeannene Douglass, who urged corrections employees to keep calculating sentences the incorrect way they had been, noting inmates wouldn’t complain because they’d serve less time and it would be a “real mess” to have to recalculate sentences. He called her an “honest actor moving in the right direction” but one of those people who’s “always certain but seldom right.”

Bruning was more forgiving of his former Assistant Attorney General Linda Willard, who sent the Supreme Court opinion to corrections employees, alerting them they may be calculating sentences incorrectly. He said she brought the issue to their attention, but they opted not to heed her advice.

“She said clearly you need to do it the right way,” Bruning said. “You can lead a horse to water, but you can’t make ’em drink.”

Bruning said there are still plenty of good people working in corrections. “This is the classic few bad apples spoiling the bunch,” Bruning said.

Three state employees refused to be interviewed by criminal investigators: Douglass, Green and former prison attorney Sharon Lindgren. They were subpoenaed to testify before a special legislative committee looking into the matter.

Bruning said he felt the prisons committee, led by Sen. Steve Lathrop, D-Omaha, got “badly diverted.”

“I think at one point it ended up just being theater. I thought the whole subpoena of the governor was odd and unnecessary,” he said. “Many times it seemed like it was a made-for- media moment.”

Criminal investigators didn’t interview the governor, Bruning said.

“This was a criminal investigation, and he was nowhere near that,” he said. “He wasn’t even in the realm of possibility.”

This Role Playing Hypothetical has been used in the classroom for twenty years and for in-house training for attorneys general and their staffs for even longer.  While reading the hypothetical takes only a few minutes, putting it in play best lasts an hour.   The class begins with one student assigned at random as the attorney general who then must make character assignments among fellow students.  The case quickly takes on a life of its own as other characters are added.

Will the view of the non lawyer Chief of Staff prevail?   Will the Criminal Deputy who wants no public statement until an investigation is conducted be respected?  Will the assistant attorney general assigned to the Department of Correction and actually knows the department – and is paid by it – have a voice?  Will the litigators responsible for defending the state civilly succeed in keeping the Chief of Staff or the attorney general from making a statement?

And what will the Commissioner of Corrections, appointed by the Governor and yet the “client” of the attorney general, do when faced with public attacks?  What will legislators who oversee the budget of the attorney general do as a result of this case?   Will District Attorneys or the U. S. Attorney become involved?   And what will various interest groups ranging from those who are prison reform advocates to the union who represents the accused prison officials, have to say?

And how does the Chief Deputy “control” such a fast moving situation in the media - both local and national - when the plaintiff lawyer and the parents of the alleged victims have made public statements and have agreed to appear on national "talk shows"?

Assigning roles in this fact pattern makes the readings of the first two weeks “come alive," together with an appreciation of a Chart that at first reading seem self evident.   This exercise also sets up the Ethics chapter that addresses how the Rules of Professional Responsibilty actually work for attorneys general.

WHO IS THE CLIENT? - HYPOTHETICAL

You are the newly elected Attorney General of Everett, and you arrive to find an emergency meeting convened in your office. In your office is the Chief Deputy Attorney General (Kelly Welly), the Deputy Attorney General in charge of the Criminal Division (Jack Elrod), the Assistant Attorney General assigned to the Department of Corrections (Cherie Davis), the Assistant Attorney General assigned to handle tort claims against the State (Ed Dodd), and the Chief of Staff for the Attorney General’s Office (Tom Davis) (who was also your press secretary in your recently hard won election).

Davis informs you that he had just been informed by the Associated Press that there is going to be a press conference in 30 minutes in which “explosive” allegations are going to be made about the regional youth detention centers operated by the Department of Corrections, and that the press is going to be looking for a reaction from you.

For the last ten years, the State of Everett has proudly operated four regional youth detention centers that assist troubled adolescents before they commit serious crimes. These “boot camps” each house, educate, and rehabilitate 40 to 50 boys between the ages of 13 and 17. The success of these centers has been so high that the senior U.S. Senator of Everett, Bill Ellis, has regularly praised them on the floor of the U.S. Senate and last spring held a widely publicized hearing of the Judiciary Committee at a center that was even attended by his colleagues from across the aisle.

None of this, however, makes any difference to Mark Trail (Harvard ’69 and Harvard Law School ’75). Having lived as a recluse in the mountains for thirty years, Trail reactivated his law license, and claims that he has “shocking” information. Trail and his team of paralegals (with the secret help of an unnamed whistleblower from the Department of Corrections and a law school clinic located at his alma mater) have just finished interviewing dozens of young boys who have recently left one or more of the four regional youth detention centers. Each of his clients tells the chilling story of having been repeatedly assaulted and abused by Center staff. Several boys allege that older inmates and other staff often watched and actually filmed these abusive encounters.

Trail, who will be joined by several legislators from both parties, is about to hold a press conference to announce his allegations. In addition, he also stated that he would

(1) File a public records request under the Everett Freedom of Information Act in which he asks for the personnel records of all Center staff; (2) File a similar request for any and all photographs or films in the possession of the Department of Corrections that in any way depict his clients; (3) Demand that the Attorney General, as part of his oft stated initiative on to protect Everett's children, initiate a complete investigation of his charges and bring appropriate criminal or civil action; and (4) Announce his intention to sue the State of Everett for monetary damages, including legal fees, on behalf of his clients and all similarly victimized boys.