The Role of the Attorney General Yale Law School

Spring 2019

Professors Peter Brann and James Tierney Instructions

This is an 8-hour, self-scheduled, exam. All four questions are equally weighted.

There is a 5,000 word limit for the entire exam.

This exam is 11 pages long, including these cover instructions. 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, and thus such legal research is not recommended. 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.

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

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

While the questions contain all of the facts required to respond, your answer may include the need for verbal communications, investigations, or informal meetings that might uncover other additional facts. As long as you clearly state the facts the office discovers and therefore is relying upon, feel free to incorporate them into your answer. Be mindful of existing expertise and resources within other state and federal governmental agencies, as well as the private sector, academia, and the private bar. As

we have discussed, simply because the Attorney General has jurisdiction does not mean that the office is the only agency capable of addressing the situation. If you believe that political issues are relevant, feel free to address them and afford to them what weight, if any, you deem appropriate. Please remember that this class has been about law and policy, but not politics.

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

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

End of Instructions

Questions

1.                   You are an Assistant Attorney General in the Civil Litigation Division handling tort claims against the State of Wilmington. In Wilmington, the Attorney General represents the University of Wilmington (“UW”).

UW has a very successful football team. It has appeared in numerous bowl games and has won the conference championship several times, including last year. The star of the team last year was All-American quarterback, senior Marty Shelley. In the conference championship, Shelley was taken out of the game after a particularly vicious blind hit, but he returned in the fourth quarter to throw the winning touchdown.

The celebrations were short-lived. Two weeks after the championship game, Shelley committed suicide by hanging. His parents authorized a brain scan, and discovered that he had chronic traumatic encephalopathy (“CTE”). CTE often results from excessive or repeated head injuries, and has been linked to depression and suicide. Recent studies have found that 87% of former football players, and 99% of NFL players who have had brain scans suffer from CTE.

This is the third suicide of a former UW football player (although the other players did not have brain scans done). Shelley’s parents, along with the parents of the other two student-athletes, have sued UW, the President of UW, the team physician, and the head trainer, and you represent all of the defendants. It is rumored that the parents reached a separate, secret settlement with the highly paid head coach, who recently left UW for a more prestigious job in the Big Ten. (Assume for purposes of this question that there are no sovereign immunity or tort claim limitations on this lawsuit.)

A.                As you look at the case file, you realize that this is going to be a massive, high profile, case, with lots of complicated discovery and expert testimony. The parents have hired a famed plaintiff’s lawyer, Eddie Wharton, who has a string of multi-million dollar, medical malpractice, verdicts. You have concerns about taking this case to a jury against Wharton.

You receive a call from the president of the UW football booster club, Henry Lee, who has given millions of dollars to UW, and is also a major financial contributor to politicians in Wilmington, including your boss the Attorney General. Lee immediately cuts to the chase: “This is an enormous case, and a lot more complicated than those prisoner cases you usually handle where the prisoner cuts off his hand in shop. You are up against Eddie Wharton, the top plaintiff’s lawyer in Wilmington. You need help. The

UW football booster club and I are willing to spend whatever is necessary to defend this case. We are willing to pay to hire the best medical defense firm in Wilmington to handle this case.” What do you say and do in response to this offer?

B.                  Regardless of your response to Lee’s offer, you continue to be involved in the case. When you meet with the defendant trainer of the football team, he provides some disturbing information after confirming that you are “his” lawyer. He tells you that Shelley had been acting increasingly erratically as the football season went along. He said Shelley often muttered to himself, “I’m lost and I’m failing.” The trainer said he did not do anything about it other than mention it to the defendant team physician, who did nothing. In the conference championship, after the blind side hit, the trainer said that Shelley’s eyes were glassy and he didn’t appear to know where he was. The trainer claims he told the team physician that Shelley shouldn’t go back into the game, but the physician just laughed: “Are you kidding? This is the championship game.”

While you are digesting this information, you receive a call from the famed plaintiff’s lawyer, Eddie Wharton. He said he would like to talk settlement, but the only way this case can settle is if everyone puts their cards on the table. Wharton then asks you pointblank: “Did any of the defendants know anything about Shelley’s mental state before or during the championship game?” What do you say and do in response to this question and the information you learned from the trainer?

C.                 A few months later, after the disastrous deposition of the defendant trainer disclosing all of the information he told you, you receive another call from Wharton. He confirms that you still represent UW, the President of UW, the team physician, and the head trainer.

Wharton then makes the following settlement offer: “My clients are terribly distraught parents who have lost their  children, and  want more than anything else to see to it that this tragedy never happens to another parent. Accordingly, they have authorized me to settle this case for $1.00 against each of the individual defendants if defendant UW agrees to an injunction banning football. If you don’t take this offer, I have no doubt that I will obtain a verdict against each individual defendant for tens of millions of dollars, bankrupting all of them. I also will ring the bell for hundreds of millions of dollars against UW, which will lead to increased state taxes, higher UW tuition, and the elimination of lots of UW programs and sports.” What do you say and do in response to this offer?

2.                   You are the Solicitor General for the State of Livermore. You were very excited to get this job and be able to work on some of the most important legal issues facing the State of Livermore and the country today. No one mentioned that many of the appeals you will be handling on a day-to-day basis are less glamorous than filing briefs in the U.S. Supreme Court. Three cases coming out of the Department of Health and Human Services (“DHHS”) concern you.

A.                The largest number of appellate briefs to the Livermore Supreme Court that you review involve parental termination cases. In these cases, the Attorney General’s office represents DHHS in its efforts to terminate the rights of unfit parents to their children. The cases usually involve some combination of abuse, neglect, substance abuse, or mental illness. Termination is necessary before the child can be eligible for a permanent foster home placement or adoption. The lawyers representing the parents are poorly paid, often recently admitted solo practitioners, and often not very good.

In reviewing one appeal, the parents’ appellate brief said that the procedure was “not fair,” but did not otherwise develop the argument. The draft appellate brief from Assistant Attorney General Helen Stowe stated, correctly, that failure to develop an argument waives the argument under Livermore law, but otherwise did not discuss the procedure provided to the parents in the trial court.

In looking at the underlying case file, you believe that the procedure did not comply with the Livermore parental termination statute, and was not only unfair, but might even violate due process. When you tell Stowe that you think the brief should discuss the issue further and perhaps concede that the procedure was improper, she pushes back: “That’s a terrible idea. The parents have waived any procedural objection. If the decision is vacated, the trial judge will simply rubber-stamp the termination of the parental rights of these abusive and drug addicted parents. Meanwhile, this will delay adoption of this special needs child for months or even a year. We bring these cases to protect children. If we confess error, who speaks for the children?” What do you say and do in response?

B.                    Meanwhile, DHHS would like you to file a cert. petition to the U.S. Supreme Court on its behalf. The Assistant Attorney General handling Medicaid issues for DHHS, Ayanna Christie, meets with you to convince you to file the possible cert. petition.

The Centers for Medicare and Medicaid Services (“CMS”) ordered Livermore to repay over $80 million that CMS claimed had been improperly spent under its Medicaid regulations. Livermore sued CMS to prevent the repayment, and in the federal district

court, Livermore won. In the appeal filed by CMS to the U.S. Court of Appeals, CMS won in a split 2-1 decision, with the dissent arguing that this case was ripe for Supreme Court review. The interpretation of these Medicaid regulations has been challenged in numerous courts, and the U.S. Courts of Appeals are split on whether CMS is correct or not.

Christie explains to you that this is obviously very important to the State, and this decision will blow a $80 million hole in the budget if it is not overturned. When you press her on the merits, her answers are not terribly convincing, except to say that several other Circuits have come out the other way in interpreting the same regulations. Your reading of the case law and regulations, and your familiarity with the current make-up of the Supreme Court tells you that although the Court is likely to take the case (especially if you can get some other States to support your cert. petition), the Court is also likely to affirm the ruling against Livermore.

Before you can make a final decision, several lawyers you know well (fellow clerks) from the leading advocacy group supporting Livermore’s position call you. They strongly urge you not to a file a cert. petition because Livermore’s case is worse than some other States that won in their Circuits, and they think the Supreme Court will affirm, creating a terrible rule for the entire country that will cost the States collectively up to a billion dollars. When you protest that this decision is going to cost Livermore

$80 million, they argue that Livermore is unlikely to win and it shouldn’t ruin things for everyone else. What do you say and do in response?

C.                 Every time you turn around, DHHS is getting sued. In administering a pilot welfare-for-work program for 150 people, DHHS had its computer system hacked, exposing the personal data of the 150 people in the program for a week or so before the hack was discovered and shut down. No one appeared to suffer any tangible damages from the data breach. Nevertheless, one of the participants brought a class action against DHHS based on the data breach.

In the trial court, Assistant Attorney General Gretchen Stein filed a motion to dismiss on behalf of DHHS on numerous grounds, including Stein’s argument that without any evidence of tangible damages, the plaintiffs lacked standing under Livermore law. The trial court granted the motion to dismiss solely on the grounds of standing. (For purposes of this question, do not worry about any possible sovereign immunity defense.) The plaintiffs appealed to the Livermore Supreme Court, which has not previously ruled on this standing issue.

The Consumer Division has consulted with you on several occasions about a confidential multistate investigation into the privacy practices of Facebook, which affect over 1 million people in Livermore. They asked you whether the Attorney General could bring an action under Livermore law against Facebook even if there was no evidence of consumers suffering tangible damages. You told them that it was a close call, but you thought it was possible. Obviously, a ruling in this pending DHHS appeal could resolve this issue one way or the other. What, if anything, do you do in connection with the appeal against DHHS in light of the much larger potential case against Facebook, and what, if anything, do you say to Stein and DHHS about this issue?

3.                   You are the Deputy Attorney General in charge of the Criminal Division in the State of Columbus. You recall hearing somewhere that it was important for the Attorney General to get along with the District Attorney, but recent events are making that very difficult.

Last year, a prominent local defense attorney, Grace Eliot, was elected District Attorney in Arlington, which is the largest city in Columbus. She ran on a criminal justice reform platform, promising to put an end to mass incarceration and to stop civil rights violations by the Arlington police. Eliot won by a large margin, and commentators are describing her as an up and coming star who could be a serious gubernatorial candidate next year. This doesn’t help your relationship with her because your boss, the Attorney General, is one of the other likely gubernatorial candidates next year.

A.                A month ago, a famous television celebrity, Larry Alcott, reported to the Arlington police that he had been attacked by two men, who shouted racist and homophobic slurs at him while beating him up. A national outcry followed. The Arlington police put over a dozen detectives on the case. Almost immediately, the Arlington police began to question Alcott’s story. After a week or so, the Arlington police concluded that Alcott had faked the entire attack, and they charged Alcott with filing a false police report, which is a misdemeanor punishable by less than a year in jail. Alcott pushed back with a team of expensive lawyers and PR flaks.

To the surprise of virtually everyone, District Attorney Eliot dismissed the charge of filing a false police report against Alcott. She told reporters, “Larry Alcott is not getting special treatment because he is a famous television celebrity. Under my new charging guidelines, which were inspired by the criminal justice reforms adopted in Delaware, my office isn’t going to expend the enormous resources to prosecute misdemeanor charges like these when there are more important cases to bring.”

The Arlington police department, and many others, are outraged. In the State of Columbus, the Attorney General has concurrent criminal jurisdiction with the District Attorney. The chief of the Arlington police department calls you up and urges you to refile the charges against Alcott. On the one hand, the Attorney General has never pursued such charges before. On the other hand, the District Attorney has never refused to prosecute such charges before. What do you say and do?

B.                  District Attorney Eliot’s reluctance to file misdemeanor charges of lying to the police is matched by her enthusiasm for bringing charges against the police. Shortly after being elected, Eliot announced that Arlington was now a “sanctuary city” even

though Arlington had not passed any such ordinance. Eliot’s announcement was particularly surprising because the State of Columbus had passed a state statute a few years ago, patterned on a similar law in Texas, that prohibited cities from passing so- called sanctuary laws. Even though the Attorney General opposed this bill when it was proposed, she is now responsible for enforcing this “anti-sanctuary city” statute.

Following up on her announcement, Eliot then ordered the Arlington police department to refuse to tell ICE about the immigration status of arrestees, and to ignore detainers issued by ICE for undocumented immigrant arrestees to hold them for 48 hours when they are released from custody so that ICE could arrest and deport them. In order to drive the point home, after an Arlington police officer informed ICE about the imminent release of an undocumented immigrant arrestee and detained that individual, as requested by ICE, District Attorney Eliot brought a criminal state civil rights action against the police officer.

The Arlington police chief immediately calls you up, and asks you to “put a stop to this outrageous situation.” What, if anything, do you do and say in response to this request?

C.                 You receive a call from Frieda O’Connor, the U.S. Attorney for the District of Wilmington. “I need to talk to you about District Attorney Grace Eliot.” “Not you, too,” you sigh.

O’Connor explains that the FBI is conducting a major criminal investigation, including wiretaps. (Assume for purposes of this question that the U.S. Attorney can share the information described below.) In addition to discussing the criminal conspiracy on the wiretaps, several of the co-conspirators also discussed funneling tens of thousands of dollars in cash to their defense lawyer, Grace Eliot, who was running for District Attorney at the time. On one wiretap, Eliot can be heard saying, “thanks for all your help. Without all this cash, I don’t know how I could possibly win this election.” Suffice it to say, the alleged cash contributions were well in excess of the contribution limits in Columbus, and none of them were reported in Eliot’s state campaign filings that she signed under state penalty of perjury.

O’Connor tells you that the U.S. Attorney is not going to be pursuing these possible state election violations, but thought you ought to be aware of them. You have no doubt that if the Attorney General brings a criminal action against Eliot, she will claim vociferously that this is political vendetta to get rid of a potential rival. What, if anything, do you do and say in response to this information?

4.                   You are the newly appointed Deputy Attorney General in charge of the Public Protection Division of the Attorney General’s Office for the State of Auburn. In meeting with the five Assistant Attorneys General assigned to the division, it becomes apparent that no one has ever tried to prioritize the work in the division. In asking the five lawyers what should be the division’s top priorities, you get five different answers.

“We should put at least two lawyers on the opioid crisis,” argues Debbie Parker. “This crisis is killing four people a day in the State of Auburn, and we can’t just rely on the multidistrict litigation being pursued by plaintiffs’ lawyers, who are more interested in their attorneys’ fees than solving this crisis, to sue Big Pharma. If we had at least two lawyers working on this issue,” continued Parker, “we could bring licensing actions against doctors running pill mills, and work with local law enforcement officials to get addicts into treatment instead of jail.”

“Instead of chasing after the opioid crisis like everyone else, we should assign at least two lawyers to handle healthcare mergers,” explains Gordon Sand. “Given the state of healthcare economics today,” Sand noted, “we can expect a tsunami of healthcare mergers in the next few years. The two largest hospitals in our biggest city are exploring a merger, and many of our failing rural hospitals are actively looking for merger partners. We need local input into these mergers to make sure that citizens can still get healthcare, but aren’t getting gouged in the process.”

“No, no, no,” exclaimed Valerie Woolf. “We should focus instead on stamping out a national scourge that for some reason has taken root in the State of Auburn,” Woolf explained. “For some reason, numerous fly-by-night companies that engage in robocalls have set up shop in our fine State, national efforts to stop such calls through large, uncollected, fines have not succeeded, and no other State Attorney General is stepping up to the plate. If we had a couple of lawyers working on going after these people with injunctions and attachments on their assets in the State, we could make a big difference on this national problem.”

“Everyone always wants to focus on big cases with the big headlines,” complained Steve Jackson. “What would really make a difference in the lives of actual people would be to have a couple of lawyers focus on bringing cases to help individuals who would otherwise not get any help,” Jackson continued. “This would include cases where the individual recovery is too small to bring an individual action under the unfair and deceptive trade practices act or where the consumer is too vulnerable (old, uneducated, non-English speaking, etc.) to bring an action. We should be helping those who can’t help themselves.”