Nov. 17, 2014
By Rory Green, Senior Associate
rgree14@lsu.edu
The Louisiana attorney general is vested with the power to control legal actions by, or against, the state, subject only to the obligation to uphold the laws of the state.[1] But the extent of the attorney general’s control over state litigation is undefined.[2] The lack of clarity in the attorney general’s authority has been the subject of repeated debate due to political controversy that is typically associated with major lawsuits by or against the state.[3] Importantly, it is unclear whether state agencies pursuing litigation constitute the attorney general’s “clients,” with whom control of the objectives of litigation resides, or instead, whether the attorney general may dismiss suits and force settlements individually.[4] Louisiana laws, in addition to relevant out-of-state and historical guidance, imply that it is the attorney general alone who may intervene in an independent agency’s legal actions.[5] Nevertheless, an independent agency’s decision to pursue litigation may contradict the political standpoint of other government actors and instigate political response.[6]
Although the attorney general’s powers could be employed to protect an agency from political influence during litigation, current law is ambiguous and could be interpreted to allow total usurpation of an agency’s legislatively mandated independence over its own operations.[7] The suit filed by the Southeast Louisiana Flood Protection Authority (SLFPA) in July 2013 exemplified the intra-governmental and constitutional conflicts that can arise due to political contention over the legal actions by political entities, especially independent agencies.[8] The SLFPA filed suit against over 100 oil, gas, and pipeline companies to demand contribution to coastal restoration engagements that help protect the New Orleans area from catastrophic flooding.[9]
Contrary to the SLFPA’s claim, Louisiana Governor Bobby Jindal has argued that the legislature did not grant the SLFPA the power to sue entities on behalf of Louisiana coastal lands and flood protection systems.[10] Additionally, Jindal has contended that the SLFPA may not employ legal counsel and pursue civil actions without his express approval.[11] After the SLFPA was demonized for contradicting the state’s “50 year plan,”[12] the SLFPA’s power to bring its suit was allegedly removed by Act 544.[13] More recently, a Baton Rouge judge has questioned the applicability of the Act to the SLFPA and whether the SLFPA qualifies as a “state entity” within the meaning of Act 544 at all.[14] Regardless, the issues initially raised by this suit provide a compelling situation in which the Louisiana attorney general’s powers are put to the test.
The attorney general has constitutional authority to represent the state, its officers, and agencies in suits by or against the state.[15] For fear of concentrating too much power in one executive officer (typically, the governor), most states have expanded the independence of the attorney general, making it a popularly elected position free from gubernatorial control.[16] Additionally, almost every state has designated the attorney general as its chief legal officer.[17] Louisiana did the same in 1973.[18] Nevertheless, the degree of control that an attorney general enjoys over the legal actions of the state is often vague or undefined.
The degree of “common law” powers associated with a state’s attorney general is one important and historical method of assessing the constitutional or statutory limitations of his control over such legal strategies.[19] In Manchin v. Browning, the West Virginia Supreme Court ruled that the state attorney general no longer possessed the powers and duties previously enjoyed by the office under the common law.[20] Therefore, the attorney general’s duty to represent a state officer in litigation required comportment with the objectives of that state officer as is typically required by clients of their attorneys.[21] Other states, however, have granted attorneys general broad common law powers to dictate policy and intervene in actions on behalf of the state and its citizens.[22]
Neither Louisiana law nor jurisprudence clarifies the extent to which the Louisiana attorney general operates in a common law or “statutory” capacity.[23] There is variance in the application of both theories as well. Some states employ a statutory model to elevate the attorney general’s status to “the only officer empowered to represent the people” in litigation involving the state.[24] Some states even require that some or almost all executive officers, boards, or authorities seek counsel from the attorney general exclusively.[25] On the other hand, some statutory models narrow the authority of the attorney general to particular types of state litigation or clarify the governor’s superiority over the attorney general’s operations.[26] Alternatively, common law models are based upon the historical development of the attorney general acting as chief legal officer to the king with litigious powers limited only by the king himself.[27] Contemporarily, the “king’s will” to limit the attorney general’s authority is a theoretical construct best embodied by the will of the people as expressed by their constitution or other law.[28]
The most appropriate interpretation of state law and the constitution implies that the Louisiana attorney general is not clearly subject to either theory.[29] Characteristic of a common law attorney general, he is the chief legal officer of the state[30] and is beholden to the electorate, not, for instance, the governor.[31] Contrarily, the state constitution grants the attorney general his or her power.[32] Yet, again, the office is not statutorily limited to those powers otherwise granted by the legislature and the constitution.[33] Rather, it is subject to statutory modification by the legislature but only when such modification does not represent an impermissible exercise of another actor’s power or an effective destruction of a constitutionally provided office.[34]
The Louisiana attorney general’s authority is arguably limited only by proscriptions of law or the constitution. Like many states, however, Louisiana law does not describe these specific duties and limitations in detail.[35] Therefore, although the attorney general is the government actor who can most appropriately represent and even intervene in the representation of state agencies and commissions, his duties to that agency once representation begins are unclear. The limit of his control of legal strategy and policy is shaped only by his constitutional power to represent and his coinciding duty to uphold the laws of the state.[36] Scholars have argued that attorneys general are statutorily obligated “to defend, not contradict, the policies of state officers or agencies, except when those policies violate the law,” but this presumption is not applicable to attorneys general with no such statutory guidance.[37] Such a duty represents sound public policy, but the Louisiana attorney general does not receive even this minimal guidance from state law.
For these reasons, the attorney general’s powers are those most likely to subvert an agency’s legislatively intended independence and even implicate the separation of powers doctrine when adjudicating a civil matter on behalf of an agency. Using this same authority, however, the attorney general could offer a constitutionally empowered shield from political influence to agencies and facilitate the legislature’s intent for that agency. The attorney general is in the unique position of either usurping executive agency power, contrary to legislative intent, or apolitically buttressing the laws of the state by facilitating his “client’s” (the agency’s) objectives.
Under the reasoning of Manchin, because attorneys general are popularly elected, “[they] possess[] a constitutional residuum of responsibility that may not be abrogated other than by constitutional amendment.”[38] Similarly, a constitutional amendment is the proper vehicle for clarifying the responsibilities of the Louisiana attorney general. An amendment is necessary to ensure that the attorney general will advance the interests of government agencies and officers in litigation.[39]
An ideal amendment of the constitutional provision concerning the attorney general should be carefully constructed not to modify his powers beyond the clarification of his obligation to state actors’ objectives. For instance, it is important that the type of government actors (clients) included not differ from those the constitution currently permits the attorney general to represent.[40] Therefore, an ideal amendment would merely supplement the constitution’s current language to (1) provide that the attorney general’s presumptive obligation when representing any arm of the state in civil litigation is to advocate for that organization’s desired legal objectives, and (2) extend that obligation to only litigious objectives that are lawful and do not contradict public policy.
As ideally amended, Louisiana Constitution, article IV, section 8, would conclude:
When representing a state department, agency, officer, or other state organization in any civil action concerning that state organization’s interests, the attorney general must advocate for that organization’s desired legal objectives, so long as they are lawful and not contrary to public policy.
With the limits of the attorney general’s constitutional obligations to his “client” agencies better defined, those agencies’ autonomy is better safeguarded against any contrary political pressures that could otherwise be placed upon the attorney general or agencies themselves. Therefore, an amendment as described above would realize the attorney general’s constitutional mandate by facilitating the operations of state agencies, shielding government actors in suit from undue political pressure, and efficiently resolving inter-governmental legal conflicts.
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[1] See La. Const. art. IV, § 8.
[2] See State v. Green, 566 So. 2d 623 (La. 1990); see also State ex rel. Guste v. Roemer, 949 F.2d 145 (5th Cir. 1991).
[3] See, e.g., Petition for Damages and Injunctive Relief, Bd. of Comm’r of the Se. La. Flood Prot. Auth.-E. v. Tenn. Gas Pipeline Co., 2013 WL 3948577 (La. Dist. Ct. July 24, 2013) (No. 13-6911); see also Green, 566 So. 2d at 623; Roemer, 949 F.2d at 145.
[4] The objectives of litigation include pivotal decisions, such as whether to settle or drop the suit, while the means of the suit, or legal strategies, are under the attorney’s authority. See La. Rules of Professional Conduct, Rule 1.2.
[5] This Post intends to leave interference in the numerous non-litigious actions of state agencies for another discussion. In these actions, the attorney general’s constitutional right to represent the state and its arms is not likely to be such a critical component.
[6] Similarly, the governor of Louisiana made clear that he found the Southeast Louisiana Flood Protection Authority’s suit to be politically untenable. See Dennis Woltering, Jindal Demands Levee Board Drop Coastal Erosion Lawsuit Against Oil Industry, WWLTV (Sept. 20, 2013) http://www.wwltv.com/news/Jindal-demands-levee-board-drop-coastal-erosion-lawsuit-against-oil-industry-216832911.html, archived at http://perma.cc/NK4V-X6XB.
[7] See, e.g., La. Const. art. IV, § 8.
[8] Petition for Damages and Injunctive Relief, Bd. of Comm’r of the Se. La. Flood Prot. Auth.–E. v. Tenn. Gas Pipeline Co., 2013 WL 3948577 (La. Dist. Ct. July 24, 2013) (No. 13-6911).
[9] Id. The SLFPA has posited that this power delineates from its constitutional charge to protect the areas behind the Greater New Orleans flood protections. See La. Const. art. VI, § 38 (“all other purposes incidental thereto”); La. Rev. Stat. Ann. § 38:330 (2005).
[10] See Woltering, supra note 6.
[11] Id.
[12] This “50 year plan” is an agreement between many representatives of the oil and gas industry and the governor and legislature to combine coastal restoration efforts with the goal of stabilizing the erosion rate over the next 50 years. See generally Coastal Protection & Restoration Authority, Louisiana’s Comprehensive Master Plan for a Sustainable Coast (2012), available at http://issuu.com/coastalmasterplan/docs/coastal_master_plan-v2?e=3722998/2447530, archived at http://perma.cc/P2UD-GQ45.
[13] Act 544 was signed into law by Governor Jindal. La. Rev. Stat. Ann. § 49:214.36 (2012).
[14] See, e.g., Jeff Adelson, Baton Rouge Judge: New Law Does Not Kill Levee Board’s Lawsuit, The Advocate (Oct. 10, 2014), http://theadvocate.com/news/neworleans/10458872-148/baton-rouge-judge-new-law, archived at http://perma.cc/EB3B-Y48P.
[15] See La. Const. art. IV, § 8.
[16] See William P. Marshall, Break Up The Presidency? Governors, State Attorneys General, and Lessons From the Divided Executive, 115 Yale L.J. 2446, 2451 (2006) (citing Council of State Gov’ts, The Book of the States 268 (2005)). In fact, the position of attorney general has presented a “strong barrier” to more contemporary reforms that have concentrated greater power in governors. See Scott M. Matheson, Jr., Constitutional Status and Role of the State Attorney General, 6 U. Fla. J.L. & Pub. Pol’y 1, 28 (1993). Pertinently, Matheson argues that opposition to subverting attorneys general to governors comes not just from the public but from legislators and agency heads who perceive gubernatorial control as a threat to their functionality. Id.
[17] See, e.g., La. Const. art. IV, § 8; Ariz. Rev. Stat. Ann. § 41-192(A) (West 2013); Colo. Rev. Stat. Ann. § 38-13-102(2.5) (West 2013); Ga. Code Ann. § 45-15-10 (West 2013); Miss. Code Ann. § 7-5-1 (Supp. 2013). See also Marshall, supra note 16 (citing Nat’l Ass’n of State Attorneys Gen., State Attorneys General: Powers and Responsibilities 6 (Lynne M. Ross ed., 1990)).
[18] Michael B. Holmes, The Constitutional Powers of the Governor and Attorney General: Which Officer Properly Controls Litigation Strategy When the Constitutionality of A State Law Is Challenged?, 53 La. L. Rev. 209, 212 (1992). Holmes discusses how the “chief legal officer” appears to be a truism among descriptions of attorneys general and in the jurisprudence. He postulates that the legislature did not intend to increase or decrease the Louisiana attorney general’s powers with this language. Id. at 219.
[19] See Patrick C. McGinley, Separation of Powers, State Constitutions & The Attorney General: Who Represents the State?, 99 W. Va. L. Rev. 721, 738–39 (1997).
[20] Manchin v. Browning, 296 S.E.2d 909, 915 (W. Va. 1982). Notably, the court overruled previous precedent to say that the state constitution of 1873 did not invest such powers in the attorney general. Nevertheless, the court decided this 1982 case under the 1971 Constitution of West Virginia, implying that the two may be interpreted similarly.
[21] Id. at 915. See also the Louisiana Rules of Professional Conduct, Rule 1.2.
[22] See Marshall, supra note 16 (citing In re Cardizem CD Antitrust Litig., 218 F.R.D. 508, 521 (E.D. Mich. 2003); Blumenthal v. Barnes, 804 A.2d 152, 165 (Conn. 2002)); see also Shute v. Frohmiller, 90 P.2d 998, 1001–04 (1939); Ariz. Rev. Stat. Ann. § 1-201 (West 2013).
[23] For a full discussion of these classifications and attorneys general, see Michael Signer, Constitutional Crisis in the Commonwealth: Resolving the Conflict Between Governors and Attorneys General, 41 U. Rich. L. Rev. 43, 54–55 (2006).
[24] State ex rel. Beeler, Schad & Diamond, P.C. v. Burlington Coat Factory Warehouse Corp., 860 N.E.2d 423, 427 (Ill. App. Ct. 2006).
[25] State ex rel. Leslie v. Ohio Hous. Fin. Agency, 824 N.E.2d 990, 998 (Ohio 2005) (interpreting the statute that “no state officer or board, head of a department, or institution of the state” shall contract with other attorneys at law).
[26] See Justin G. Davids, State Attorneys General and the Client-Attorney Relationship: Establishing the Power to Sue State Officers, 38 Colum. J.L. & Soc. Probs. 365, 371–73 (2005).
[27] See id. at 372.
[28] See id. at 371–73.
[29] Although most operate under a common law model, many states have adopted the statutory model. See id. at 372.
[30] The title of chief legal officer is not dispositive of an attorney general’s common law nature or coinciding powers. Because this title has been dispassionately implemented across the country—even as the definition of attorney general in some texts—it may denominate a truism. See Holmes, supra at 18, at 220. Nevertheless, courts have designated the attorney general as the state’s “general counsel.” See, e.g., Manchin v. Browning 296 S.E.2d 909, 915 (W. Va. 1982); State ex rel. Beeler, Schad & Diamond, P.C. v. Burlington Coat Factory Warehouse Corp., 860 N.E.2d 423 (Ill. App. Ct. 2006).
[31] See Signer, supra note 23, at 54–55 (“The responsibility to act for the King and for the people in general was thus apparently fused in the common-law model of the office.”).
[32] La. Const. art. IV, § 8.
[33] See id.
[34] See Davids, supra note 26, at 372.
[35] See id. at 372 n.33 (explaining that, typically, state laws only provide the method of election and term of office).
[36] See, e.g., La. Const. art. III; La. Const. art. IV, § 8.
[37] See Marshall, supra note 16, at 2454.
[38] See McGinley, supra note 19, at 741–43.
[39] Alternatively, the legislature could modify each and every department, agency, or officer statute to include express recognition that that entity will operate as a “client” to the attorney general if that entity were under his representation. This would require the passage of numerous bills through the legislature, which is often a slow and heavily politicized process. Additionally, modifying so many statutes can occasionally create unforeseen systemic problems in the operations of these different entities.
[40] La. Rev. Stat. Ann. § 38:330.1 (Supp. 2014).