An Educational Resource on the Office of State Attorney General
Going beyond the headlines to examine the often overlooked issues and cases that highlight the wide-ranging impact and role of state attorneys general.
Statement by Former Maine Attorney General and Harvard Lecturer-in-Law Jim Tierney on the law and policy underlying the relationship between Attorneys General and District Attorneys. The issue is of immediate relevance in light of MN AG Keith Ellison taking over as lead prosecutor for Hennepin County Attorney Mike Freeman in the case regarding the death of George Floyd.
Read MoreAre offices of the state attorney general, like so many government institutions and agencies in our country, captured and defined by the partisan politics of the age?
Read MoreMy longtime friend Kathy Jennings is now the Attorney General of Delaware where her experience as a talented prosecutor and leader are serving her well. Because the Delaware AG is the only prosecutor (there are no District Attorneys), Kathy's reforms take effect immediately. I'm glad to see that her work is receiving significant praise and notice in the criminal law reform community.
Away from the headlines and worth noting: so far this year over 700 law enforcement officers in Louisiana have come together to attend sexual assault workshops hosted by the Louisiana Office of Attorney General. It is exactly the right thing to do.
New York Attorney General Barbara Underwood has posted a wonderful video reflecting on her tenure as New York Attorney General. Take a minute to watch it if you can.
Thank you, Barbara!
Despite the short duration, your tenure as NY AG will go down as one of the most consequential and impactful in the history of that office. This country is safer because of you and the incredible men and women of the NY OAG.
Because next month 16 attorneys general will be leaving office and will be making major career choices, I thought of my friend Bill Sorrell who served as Vermont’s Attorney General for nearly 20 years. Bill was elected nine times, led many state and national initiatives - mostly in the area of public health - and won numerous awards. He even has a lecture series named for him.
Deciding not to seek reelection in 2016, Bill did not forget the responsibility we all have to make our world a better place one person at a time. This article describing Bill's work at Mercy Connections in Burlington, Vt. says it all.
“The US Supreme Court in 2006 gave the states the special right to sue the federal government when other organizations can’t. But the real reason it’s happening is because of the integration of our economy. ”
From WNYC’s The Takeaway:
As the state’s “top lawyer,” attorney generals have become national players in fights over everything from the health care law and immigration, to marijuana and gay marriage. They were also responsible for bringing in close to $100 million in election donations this year. James Tierney, Former Attorney General for Maine and founder of StateAG.org, breaks down why attorney general races matter — and what they're worth.
Click the ‘play’ button below to hear this segment.
Far from the clamor of the national headlines, Wa AG Bob Ferguson and his staff, working closely with the Northwest Justice project, has been litigating on behalf of women agricultural workers who have long been the victim of sexual harassment. Ferguson said in a statement: “No woman in this state should be forced to accept sexual harassment as a condition of her employment.”
The State filed a complaint on April 26, 2017 against Horning Brothers, LLC alleging it violated of Title VII of the federal Civil Rights Act, as well as the Washington Law Against Discrimination. Horning Brothers is an agricultural company that grows, harvests, sorts, packs, and transports vegetables and women who work in the onion packing shed were harassed by a supervisor who repeatedly asked for sex, made overt sexual gestures, and engaged in the groping and touching women.
The consent decree includes not just a $525,000 payment but also an injunction that requires Horning Brothers to take steps to end discrimination in its hiring and employment practices, create a complaint procedure for employees, and provide semi-annual reports of complaints to the AG’s office. Horning Brothers would be required to make its new policies available to its employees in English and Spanish.
In a statement, one of the victims had a message for other workers: “I’m here to tell anybody that’s going through that that they have a voice.” She also had a message for those in positions of authority: “This is a big message to all the foremen, all the people in charge, who think that they have power over women, that they don’t.”
More press coverage can be found here and here. Video of the press conference can be found here.
In the 43 states that have a state income tax, tax enforcement is done in close cooperation with the Internal Revenue Service (IRS) of the U.S. Department of Treasury. Because the budget of the IRS has been slashed, the number of federal audits and prosecutions have dropped dramatically leaving billions of federal and state tax dollars uncollected.
All attorneys general have the responsibility to protect their own state tax collection process. I would suggest that because the federal government isn't doing its job that state attorneys general must step up their tax prosecutions, even if it means taking over cases from a starved IRS.
No one wants this result, but the cuts to the IRS budget leave little choice. Subjecting taxpayers to separate state and federal audits wastes time and increases tax planning angst for all parties. But as happens in so many areas, if the federal government refuses to enforce the law, then the states have no option but to go it alone.
Jesse Eisinger and Paul Kiel, After Budget Cuts, the IRS’ Work Against Tax Cheats is Facing “Collapse,” Pro Publica, Oct. 1, 2018
Tanza Loudenback, What Americans pay in state income taxes, ranked from highest to lowest, Business Insider, Apr. 8, 2018
Internal Revenue Service: Tax Gap Estimates for Tax Years 2008-2010
Daniel Uria, New York tax department reviewing allegations of Trump family tax fraud, UPI Oct. 2, 2018
Virginia AG Mark Herring recently lost his motion to take his state's redistricting out of the hands of elected officials. He and his Governor had asked a federal judge to appoint an independent "map drawer." Despite the loss, Herring’s effort underscores the role that attorneys general have long played in drawing district lines.
Last spring, Professor Justin Levitt and I wrote a memo summarizing the history and the potential of attorney general involvement in the redistricting process. For those interested in legislative and federal redistricting, it’s worth a read.
A recent article in Forbes, How state attorneys general are driving tech policy, accurately notes an increased interest on the part of state attorneys general in tech policy. It argues that, while there are times when state action makes sense, the nature of the Internet requires that state action be preempted and national norms be imposed.
Attorneys general push back on this conclusion citing the inability of the federal government to meaningfully address tech policy issues. And state legislatures are likewise taking matters into their own hands, as California's passage of a net neutrality law last week shows.
As this debate continues, the "AG Tech Forum" at the Berkman Klein Center for Internet and Society at Harvard Law School is working to "bring insights from academic and other constituencies to ensure that all sides benefit from dialogue on neutral ground" on these issues.
The challenges of formulating tech policy will only grow in the years ahead, and the role of attorneys general has yet to be fully developed, making this an issue to watch.
My teaching colleague Peter Brann, former Solicitor General of Maine, has written a blog post for the American Constitution Society that is getting some serious attention. As the U.S. Senate weighs Judge Kavanaugh's assertions on precedence, Brann argues that:
“We’ve seen this movie before.… While Judge Gorsuch told Congress during his confirmation that ’precedent is the anchor of the law, ’ Justice Gorsuch had no problem immediately unmooring precedents dating back over 50 years….”
Brann's incisive catalog of Gorsuch writings speaks volumes as he urges the Senate, “[i]n evaluating Judge Kavanaugh, … [not to] be satisfied with empty platitudes about respect for precedent.”
New Jersey Attorney General Gurbir Grewal, who was recently the target of racial taunting by local radio hosts, usually (and wisely) avoids most of the interview requests he receives. But from time-to-time, he opens up, as he does in this thoughtful piece. It is worth reading.
As the 2018 mid-terms approach, objective, nonpartisan information is increasingly hard to come by — and more crucial than ever. NAAG's interactive map of 2018 state and territory elections provides an at-a-glance view of the 2018 AG races, linking to comprehensive resources on every contest.
Read MoreDuring the debate over marriage equity, any number of attorneys general refused to defend existing state same sex marriage bans and a few affirmatively challenged them. These high profile decisions prompted much hand ringing and more than a few law review articles….
Read MoreAlthough there seems to be no shortage of pollution in Illinois, there has been a dramatic drop in the number of prosecutions since the inauguration of current Governor Bruce Rauner.
Read MoreCongratulations are in order to NH AG Gordon MacDonald and NH Governor Chris Sununu for creating a Civil Rights Unit in the Office of Attorney General. Pledging not only to enforce existing anti-discrimination laws, the new unit will also work closely with local communities to prevent bias and discrimination. This is exactly the right decision for these increasingly troubled times.
Ma. AG Maura Healey is opposing efforts by a small museum in western part of her state from selling off two Norman Rockwell paintings. I post this as a reminder that for all of the national attention to the opioid epidemic, pharmaceutical price fixing, and either suing the Trump administration or filling the enforcement void left by federal retrenchment, attorneys general are still back home doing their in-state jobs. And we are talking Norman Rockwell here!
On Tuesday, the citizens of Chicago woke up to discover that their own Attorney General, Lisa Madigan, had sued the City of Chicago and its Police Department and is now asking a federal judge to force the City and other stakeholders to negotiate a consent agreement that would bring about long overdue police reform. Chicago Mayor Rahm Emanuel supports the lawsuit and stood with the Attorney General at her press conference. This odd coupling is the result of U.S. Attorney General Jeff Sessions backing away from an agreement in principle that followed a scathing U.S. DOJ report in January 2017 detailing civil rights violations by the Chicago police. Indeed, the U.S. DOJ initiated its pattern and practice investigation and issued its findings at the urging of General Madigan.
Regarding Tuesday’s lawsuit, General Madigan said, “[a]s the state attorney general, we are essentially stepping into the shoes of the U.S. Department of Justice – shoes that the DOJ has abandoned....”
Without weighing in on the specifics of Chicago police reform, I want to note the importance of Madigan's decision. The Illinois Attorney General is showing that, in the face of actions taken by an administration rolling back reforms initiated by the previous administration, state officials can turn to federal courts to create federal oversight, compel reform and ultimately bring about justice.
The importance of Madigan's decision is therefore not limited to police reform. As has been well chronicled, the Trump administration has walked away from numerous initiatives in criminal justice, environment, labor and, of course, civil rights.
As Madigan's suit makes clear, this administration’s politically motivated actions do not change the facts, nor do they change our federal and state laws and constitutions. State attorneys general have broad jurisdiction in all of these areas, and many are guided by a sense of justice that will not allow facts and injustices brought to light by the Obama administration to simply be ignored.
Most initiatives brought by Democratic attorneys general have been aimed at stopping federal retrenchment. But in the months ahead, many more state attorneys general are likely to follow Madigan's leadership and take their own actions in both state and federal courts. We should all be proud, and somewhat relieved, that our constitutionally guaranteed system of federalism has ensured that the flawed actions of one president and his attorney general cannot stop our state attorneys general in their pursuit of justice.
A bi-partisan group of 67 former Attorneys General of the states and jurisdictions today pointed to the example of one of their colleagues to remind us all of the moral imperative to respond directly to those who amplify the voices of hate. See the statement below issued by the former Attorneys General, and here is the link to former Alabama Attorney General Bill Baxley‘s response to the KKK:
Bill Baxley practices law in Birmingham, Alabama: bbaxley@baxleydillard.com
CONTACT: James Tierney, Lecturer on Law, Harvard Law School:
http://hls.harvard.edu/faculty/directory/10888/Tierney
_______________________________________
STATEMENT BY FORMER STATE ATTORNEYS GENERAL
THERE ARE TIMES IN THE LIFE OF A NATION, OR A PRESIDENT, OR A STATE ATTORNEY GENERAL WHEN ONE IS CALLED UPON TO RESPOND DIRECTLY TO THE VOICE OF HATE.
AS FORMER STATE ATTORNEYS GENERAL - WE TAKE THE LIBERTY OF REMINDING AMERICANS - AS WE REMIND OURSELVES - THAT EVENTS CAN CALL OUT THE WORST IN US -- AND THE BEST.
IN 1971 THE TWENTY-NINE YEAR OLD ATTORNEY GENERAL OF ALABAMA BEGAN HIS QUEST TO BRING TO JUSTICE THE PERPETRATORS OF THE BIRMINGHAM CHURCH BOMBING WHICH KILLED FOUR LITTLE GIRLS. IT WAS A CRIME ROOTED IN HATE AND HIS DETERMINATION TO PROSECUTE THE CASE GAVE RISE TO VOICES OF LEADERS OF HATE. HE FACED POLITICAL FUROR, LACK OF COOPERATION FROM FEDERAL AND STATE GOVERNMENT AGENCIES AND CONSTANT THREATS OF PHYSICAL VIOLENCE AND DEATH. BUT HE PERSISTED. IT TOOK YEARS BUT HE OBTAINED A CONVICTION.
IN 1976 WHEN THE GRAND DRAGON OF THE KU KLUX KLAN WROTE A THREATENING LETTER AND DEMANDED THAT ALABAMA ATTORNEY GENERAL BILL BAXLEY RESPOND DIRECTLY TO HIS LETTER, HE DID.
WE COMMEND HIS RESPONSE (SEE LINK ABOVE) TO THE ATTENTION OF ALL WHO SEEK TO EQUIVOCATE IN TIMES OF MORAL CRISIS.
FORMER ATTORNEYS GENERAL,
Robert Abrams, New York
Ronald Amemiya, Hawaii
Jeff Amestoy, Vermont
Bruce Babbitt, Arizona
Thurbert Baker, Georgia
Paul Bardacke, New Mexico
Steve Beshear, Kentucky
Bruce Botelho, Alaska
Margery Bronster, Hawaii
Charlie Brown, West Virginia
Richard Bryan, Nevada
Charles Burson, Tennessee
Bonnie Campbell, Iowa
Steve Clark, Arkansas
Walter Cohen, Pennsylvania
Robert Cooper, Tennessee
J. Joseph Curran, Jr., Maryland
Fred Cowan, Kentucky
Frankie Sue Del Papa, Nevada
Jerry Diamond, Vermont
Richard Doran, Florida
John Easton, Vermont
Rufus Edmisten, North Carolina
Drew Edmondson, Oklahoma
Tyrone Fahner, Illinois
Lee Fisher, Ohio
Karen Freeman – Wilson, Indiana
Terry Goddard, Arizona
Chris Gorman, Kentucky
Slade Gorton, Washington
Jennifer Granholm, Michigan
Scott Harshbarger, Massachusetts
Peter Harvey, New Jersey
Hubert H . Humphrey III, Minnesota
Drew Ketterer, Maine
Oliver Koppell, New York
Peg Lautenschlager, Wisconsin
Joseph Lieberman, Connecticut
Michael Lilly, Hawaii
Alicia Limtiaco, Guam
Bill Lockyer, California
David Louie, Hawaii
Robert Marks, Hawaii
Brian McKay, Nevada
Jeff Modisett, Indiana
Betty Montgomery, Ohio
Mike Moore. Mississippi
Jim Petro, Ohio
Jeffrey Pine, Rhode Island
Warren Price III, Hawaii
Hector Richard, Puerto Rico
Clarine Nardi Riddle, Connecticut
Dennis Roberts, Rhode Island
Stephen Rosenthal, Virginia
Stephen Sachs, Maryland
James Shannon, Massachusetts
Mark Shurtleff, Utah
William Sorrell, Vermont
Robert Spagnoletti, District of Columbia
Robert Stephan, Kansas
Mary Sue Terry, Virginia
James Tierney, Maine
Anthony F. Troy, Virginia
Jim Guy Tucker, Arkansas
Paul Van Dam, Utah
Bob Wefald, North Dakota
Grant Woods, Arizona
StateAG.org offers in-depth analysis of the role of state attorneys general in the American legal system. It was founded by James E. Tierney, former Attorney General of Maine and a Lecturer at Harvard Law School where he also directs the Harvard Attorney General clinic. For thirteen years he was Director of the National State Attorneys General Program at Columbia Law School.
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