This fall, the Harvard Berkman Klein Center will begin an "AG Tech Forum" bringing together thought leaders from both the tech industry and the attorney general community to explore issues such as privacy and artificial intelligence.
I am proud to be involved in this effort along with my friend Travis Leblanc, formerly with the California Office of Attorney General and Chief of Enforcement at the Federal Communications Commission. More information will be forthcoming in the months ahead.
It is an indictment of the current age that we must pause and applaud a rare moment of bipartisan cooperation around an incredibly important and seemingly uncontroversial issue. But such are the times.
This did not take place in the halls of Congress, of course, but rather among a group 32 state attorneys general, led by Massachusetts AG Maura Healey, a Democrat, and Colorado AG Cynthia Coffman, a Republican.* On May 22, the group sent letters to members of the House and Senate Appropriations Committees declaring their bipartisan opposition to the Trump administration’s proposal to eliminate all federal funding to the Legal Services Corporation (LSC). The corporation is a grant-making organization created by Congress for the purpose of distributing federal appropriations to nonprofit organizations that provide civil legal assistance. This group of state AGs joins the American Bar Association, state judges, over 150 law firms and many other concerned groups in opposing this assault on civil legal services for low-income Americans. This includes the elderly, and low-income military veterans and military families.
It is only fitting that a bipartisan coalition of public officials rallies around this organization. LSC’s conception began under President Lyndon Johnson’s “war on poverty” and culminated in the enactment of a bipartisan bill signed into law by President Richard Nixon in 1974 that created the grant-funding organization. According to the LSC website, in describing the need for the organization, President Nixon wrote:
Here each day the old, the unemployed, the underprivileged, and the largely forgotten people of our Nation may seek help. Perhaps it is an eviction, a marital conflict, repossession of a car, or misunderstanding over a welfare check—each problem may have a legal solution. These are small claims in the Nation’s eye, but they loom large in the hearts and lives of poor Americans.
The need for civil legal services for those living near or below the poverty line, as well as middle-income Americans, has never been greater. According to the ABA’s Commission on the Future of Legal Services 2016 Report, approximately 63 million Americans are eligible for civil legal assistance through an LSC grantee, meaning their salaries were at or below 125% of the federal poverty line. And yet, current congressional appropriations allow LSC and its grantees to serve only a small percentage of those eligible for legal services. In many cases, legal services agencies must turn away individuals in need of legal assistance. The report found that “in some jurisdictions, more than eighty percent of litigants in poverty are unrepresented in matters involving basic life needs, such as evictions, mortgage foreclosures, child custody disputes, child-support proceedings, and debt collection cases.”
ABA President Linda Klein’s testimony before a U.S. Senate Appropriations Subcommittee shed further light on this dire situation. Since 2010, funding for LSC has dropped approximately 18%, while the number of individuals eligible for free civil legal services has increased 25%.
Presidential and congressional defunding threats have long been part of LSC’s history. In 1982, President Reagan recommended that Congress not reauthorize LSC funding. Interestingly, state AGs also rose up to defend LSC, on a bipartisan basis, against the Reagan assault. Although Congress rejected President Reagan’s proposal, it did reduce the budget and impose onerous restrictions on LSC attorneys. Similarly, in the mid-90’s, a Republican controlled Congress implemented another round of cuts to the nonprofit corporation.
Defunding LSC would be devastating to some state legal services organizations. For instance, in 2015, Legal Services of Alabama relied on LSC for 88% of its funding, Dakota Plains Legal Services of South Dakota received 86% of its funding from LSC, and Montana’s Legal Services Association received 43% of its funding from LSC.
As news outlets have noted, this proposal would, in many cases, impact the very residents that supported the President during the election. The South Dakota and Montana Attorneys General, Republicans in states whose electoral votes went to Trump, joined the coalition of state AGs opposing the administration’s proposal.
Aside from the moral dimension of this proposal, studies have shown that civil legal services providers actually have a positive impact on state and local economies. A study commissioned by the Tennessee Bar Association in 2015 entitled, "Economic Impact of Civil Legal Aid Organizations in Tennessee," found that not only did the organizations have positive impacts on the client population, but with every dollar invested in a legal service organization, over $11 was produced “in financial benefits, extending to businesses, local governments and individuals across all social classes.”
The rationale for this latest attack on LSC comes under the guise of placing “more control in the hands of State and local governments, which better understand the needs of their communities.” On this point, the President may be right. So, to the administration and members of Congress, take it from 32 state attorneys general, the chief legal officers of their respective states, when they say, “[a]t a time of constrained state budgetary resources, federal funding plays an increasingly critical role in the provision of these services.” (emphasis added).
The fact that state attorneys general from both parties came together to announce their opposition to this unfortunate proposal, in this age of increased political polarization, should demonstrate to the administration and members of Congress the pressing need for continued and enhanced civil legal services for those who need it the most.
* This post initially misstated the number of state attorneys general in the coalition opposing the defunding of the Legal Services Corporation. It is 32 not 34 and has now been corrected.
In a letter sent last week, 21 state attorneys general and the Office of Consumer Protection of Hawaii urged Secretary of Education Betsy DeVos to immediately reconsider “the Department of Education’s revocation of critical student loan service reforms.” The policy and guidance memoranda withdrawn by the Department addressed industry-wide procedures by student loan servicing companies that were the subject of investigations and enforcement actions by the Illinois and Washington State Attorneys General, among others.
The April 24 letter highlights some of the industry practices that contributed to more than a quarter of borrowers being delinquent or in default on a student loan, according to a report by the Consumer Financial Protection Bureau (CFPB):
According to Forbes, 44 million borrowers owe approximately $1.3 trillion in student loans, making it the second-largest type of consumer debt behind mortgages.
- Letter from Twenty-One State Attorneys General to Department of Education on Revocation of Student Loan Borrower Protections (April 24, 2017).
- Press Release, Illinois Attorney General's Office, Madigan & 20 Attorneys General Oppose U.S. Department of Education’s Rollback of Student Loan Servicing Reforms (April 24, 2017).
- Consumer Financial Protection Bureau report, Student loan servicing: Analysis of public input and recommendations for reform (September 2015).
Washington Attorney General Bob Ferguson gave a talk last week at Gonzaga Law School where he outlined the step-by-step approach he used in making his decision to challenge President Trump's Executive Order. This brief excerpt provides insight not only into this high profile case, but also into just how it is that attorneys general make litigation decisions. This is a must listen for lawyers and non-lawyers alike.
- Doug Nadvornick, WA Attorney General Tells Story About Challenging Trump Administration, Spokane Public Radio (Mar. 30, 2017).
Deanna Nelson is the Assistant Attorney General in charge (AAGIC) of a two-person regional office in Watertown, N.Y. The office is located close to the 10th Mountain (Light Infantry) Division at Fort Drum. In addition to her numerous duties as the AAGIC of the Watertown office - representing state agencies, overseeing charitable organizations, affirmative litigation and other matters - Deanna has taken it upon herself to fight for young military personnel who are away from home for the first time and all too often fall victim to a bewildering array of sophisticated, private equity funded consumer scams. This fight has led to several nationally recognized settlements on behalf of servicemembers and their families.
The effort to protect military personnel from consumer frauds continues. On March 22, AG Schneiderman, joined by members of the NY AG Consumer Protection Division, announced yet another settlement in what is obviously a nationwide scam. Freedom Stores Inc., a chain of electronics and furniture stores catering to military personnel, agreed to settle claims for illegal debt collection practices against servicemembers in New York. In 2014, the Consumer Financial Protection Bureau, along with North Carolina and Virginia, reached a settlement with Freedom Stores for the same abusive practices.
The fact is that protecting our dedicated servicemembers requires a large-scale, coordinated effort between federal and state law enforcement officials. Let's hope that the CFPB can continue to work with AG's all over the country to protect our military personnel from consumer fraud.
- Press Release, New York Attorney General's Office, A.G. Schneiderman Announces $540K Settlement With Retailer For Defrauding Over 250 Soldiers In NYS (March 22, 2017).
- See, Charley Hannagan, NY Attorney General: Store that cheated soldiers agrees to wipe out their debts, Syracuse.com (March 22, 2017).
- See, Press Release, Consumer Financial Protection Bureau, CFPB and States Take Action Against Freedom Stores for Illegal Debt Collection Practices Against Servicemembers (Dec. 18, 2014).
Connecticut Attorney General George Jepsen and his staff are continuing their opposition to federal regulatory roll backs by going to court to stop the Trump Administration from weakening federal vehicle emission standards.
According to a statement released on March 17, by filing a Motion to Intervene in the D.C. Court of Appeals in a pending case originally brought by auto manufacturers to block Obama Administration's emission standards, Connecticut hopes to allow the case to continue when the Trump Administration follows through on its promise to "undo the significant progress made toward safeguarding our clean air."
- Press Release, Connecticut Attorney General's Office, Statement from AG Jepsen on Trump Roll-back of Vehicle Emission Standards (March 17, 2017).
- See, Daniela Altimari, Jepsen Will Help Lead Legal Challenges to Trump Policies, Hartford Courant (Jan. 29, 2017).
In the face of a reduced federal presence, Columbia Law School's Sabin Center for Climate Change Law, in partnership with StateAG.org, has produced a valuable legal research tool for those interested in environmental law and policy. The State AG Environmental Action Database includes a variety of environmental lawsuits and other actions involving state attorneys general. Users can search its contents by state, issue or type of action. The database also includes links to relevant documents and resources.
This impressive database has been put together by dedicated Columbia Law School students under the supervision of Jessica Wentz, who serves as Staff Attorney and Associate Research Scholar for the Sabin Center.
I cannot overstate the importance of this effort. It is the only place where this information has been brought together in a coherent, organized fashion. The database will remain a "work in progress" as AG offices provide more cases to be uploaded. Notwithstanding the efforts by some in Washington DC, this database is demonstrable proof that state attorneys general remain vigorous protectors of our environmental heritage.
- State AG Environmental Action Database
- See, Press Release, Columbia Law School, Sabin Center and StateAG.org Launch Environmental Action Database (March 13, 2017).
The Maryland Legislature has finally gotten around to giving that state's outstanding AG - Brian Frosh - the authority that is enjoyed by almost every other AG, e.g. the authority to protect and defend the public interest by exercising his or her own best legal judgement without the approval of the Governor or the Legislature. This initiative finally consigns to the historical dustbin a wrongly decided 1984 decision by the Maryland Supreme Court.
As the Rhode Island Supreme Court said in 2008, "the holder of that high office (state attorney general), as distinguished from the usual advocate, has a special and enduring duty to seek justice." State of Rhode Island v. Lead Industries Association Inc., et al., 951 A.2d 428 (R.I. 2008).
Residents of Maryland can now be assured that their attorney general will now work to "seek justice" for them. And other attorneys general around the country can now fully welcome Maryland into their midst.
- Maryland Defense Act of 2017
- See, Josh Hicks, Maryland lawmakers give AG blanket authority to sue Trump administration, Washington Post (Feb. 15, 2017).
Kentucky Attorney General Andy Beshear is wisely partnering not just with the AARP, but also with local and county governments, various faith based groups and over 100 non-profit and retail organizations as he issues consumer warnings on a wide variety of scams. This is exactly how it should be done.
Beshear, AARP partnering with churches, ministries to prevent scams, Kentucky New Era (Feb. 19, 2017).
While the eyes of the world are on the litigation between the attorneys general and the Trump Administration's immigration ban, a January 20th article in the Florida Record carries a story that highlights an issue of great importance to all Americans.
The article discusses a Florida case that alleges an employer misclassified his employees as independent contractors in order to avoid paying employment taxes. In addition, the employer "made illegal deductions from [workers'] earnings to pay insurance on company vehicles."
The article cites a 2011 report we published at Columbia Law School, where we argued that stronger enforcement of state labor laws would benefit both workers and the marketplace. “Without meaningful enforcement by state regulators, employers will simply disregard legal obligations if doing so allows them to save time, money or effort, putting the majority who wish to abide by the law at a significant competitive disadvantage,” the report stated.
According to the National Employment Law Project (NELP), misclassification not only imposes costs to workers, but deprives state/federal coffers billions of dollars in tax revenues annually. The issue is not going away, and with the expansion of the gig economy, it's likely getting worse. Combating misclassification falls squarely in the wheelhouse of all state attorneys general.
Nancy Crist, Lawsuit reflects conflicting 'independent contractor' definition among enforcement agencies, Florida Record (Jan. 20, 2017).
See, National Employment Law Project Fact Sheet: Independent Contractor Misclassification Imposes Huge Costs on Workers and Federal and State Treasuries (July 2015).
See, Editorial: Defining 'Employee' in the Gig Economy, New York Times (July 18, 2017).
See, Jacob Meyer and Robert Greenleaf, Enforcement of State Wage and Hour Laws: A Survey of State Regulators, National State Attorneys General Program at Columbia Law School (April 2011).
Speaking at a press conference Thursday afternoon, AG Ferguson said, "People on both sides have strong feelings on this issue, but we should all agree on the Constitution."
- US Court of Appeals for the Ninth Circuit Opinion: STATE OF WASHINGTON V. DONALD J. TRUMP, 17-35105.
- Press Release, Washington Attorney General's Office, "Attorney General’s Victory Against Trump Executive Order Upheld By Court Of Appeals" (Feb. 9, 2017).
- "U.S. 9th Circuit Court of Appeals rules against Trump; travel ban will not go into effect," L.A. Times (Feb. 9, 2017).
[Updated - Feb. 6, 2017]. Democratic attorneys general are working in a highly coordinated manner on challenges to President Trump's Executive Order temporarily banning immigration of refugees and citizens from seven Muslim-majority countries. Washington AG Bob Ferguson was the first to file, and his efforts will soon generate support from his like minded colleagues, who consider themselves the "thin blue line" against what they believe to be federal lawlessness.
Note the similarity in strategy to the efforts of Texas Attorney General Ken Paxton, who last year filed suit in a Texas District Court and generated a national injunction against then President Obama's 2014 Immigration Order. AG's are again showing that they are significant factors in national issues.
- Press Release, Washington Attorney General's Office, AG Ferguson seeks halt to Trump’s immigration Executive Order (Jan. 30, 2017).
- Press Release, Hawaii Attorney General's Office, Hawaii v. Trump (Feb. 3, 2017).
- Press Release, Virginia Attorney General's Office, Virginia Brings Action Against President Trump for Unlawful and Unconstitutional Executive Order on Immigration (Jan. 31, 2017).
- Press Release, Massachusetts Attorney General's Office, AG Healey Announces Lawsuit Against President Trump's Executive Order on Immigration (Jan. 31, 2017).
- Press Release, New York Attorney General's Office, A.G. Schneiderman Files Suit Against President Trump’s Unconstitutional Immigration Executive Order (Feb. 2, 2017).
- Press Release, Minnesota Attorney General's Office, Attorney General Lori Swanson Joins Lawsuit Over Federal Executive Order (Feb. 1, 2017).
- Jim Brunner, AG Bob Ferguson files lawsuit seeking to invalidate Trump’s immigration order, The Seattle Times (Jan. 30, 2017).
- More State AGs Join Lawsuit Against Trump's Immigration Ban, Governing (Feb. 1, 2017).
- Cody Nelson, Minnesota AG Swanson joins suit against Trump's immigration order, Minnesota Public Radio (Feb. 1, 2017).
[Updated - Jan. 30, 2017] State attorneys general wasted no time in responding to President Trump’s Executive Order banning refugees, particularly Muslim refugees, from war-torn Syria and other Muslim majority countries. 17 state attorneys general issued a joint statement condemning the actions as “unconstitutional, un-American and unlawful.”
- New York attorney general on how he's fighting Trump's travel ban (Video), CBS News This Morning (Jan 30, 2017).
- Press Release, Pennsylvania Attorney General's Office, Seventeen Attorneys General condemn un-American executive order, vow to protect individual freedoms from federal government (Jan. 29, 2017).
- Press Release, New York Attorney General's Office, A.G. Schneiderman to DHS, CBP: Provide a List of All Individuals Currently Detained at JFK (Jan. 29, 2017).
- Press Release, Virginia Attorney General's Office, Attorney General Herring Formally Requests Information on Detentions in Virginia Resulting From Immigration Executive Order (Jan. 29, 2017).
- Dan Levine, States discussing lawsuit over Trump immigration order, Reuters (Jan. 29, 2017).
- Nigel Jaquiss, Oregon AG Says Trump's Executive Order Banning Immigrants from Muslim Countries is "Illegal," Willamette Week (Jan. 28, 2017).
- Gov. McAuliffe: Virginia Will Try to Challenge Trump's Executive Order Banning Refugees, NBC 4 Washington D.C. (Jan. 28, 2017).
The Connecticut Mirror has a great profile on the Connecticut Attorney General’s office. Set against the backdrop of the current multi-state investigation/lawsuit into generic drug price-fixing, the article tells readers something we have known for a long-time: this is one talented and powerful office. The Connecticut AGs office proves, once again, that talent and passion of staff can overcome any relative size and resource constraints. From the rating agency cases to this current antitrust lawsuit, Connecticut is once again leading the way on major multi-state cases. It also shows the leverage that any attorney general has when they put it all together, and in these times, that is vital to remember.
- Mark Pazniokas, How a small-state AG’s office plays in the big leagues, The Ct. Mirror (Jan. 27, 2017).
New Vermont AG T.J. Donovan took a wise step this week in appointing a committee to advise him on immigration matters. Traditionally an area where federal law dominates, states and cities are taking their own steps and Donovan has taken the initiative to get as much information as possible before he makes the difficult decisions to come. Further, Donovan, who is a Democrat, has invited GOP legislative leadership to join the process. Other AG's would be wise to follow suit.
- Elizabeth Hewitt, State panel to look at options under Trump immigration orders, VTDIGGER.com (Jan. 25, 2017).
In anticipation of the changing landscape in federal immigration enforcement, New York Attorney General Eric Schneiderman issued important legal guidance to localities and law enforcement agencies regarding the responsibilities and limits of participating in immigration enforcement.
- New York Attorney General's Legal Guidance to Local Law Enforcement
While all new attorneys general face challenges, Pennsylvania's new Attorney General, Josh Shapiro, has inherited the unique task of taking over a law enforcement position after his predecessor resigned in disgrace and is now facing a prison sentence. Shapiro has put together an impressive management team that is working to inspire the performance of the 800 career employees who have somehow kept the faith during some very difficult years. We wish him all the luck in this challenging venture.
- See, Peter Hall, Pennsylvania's new attorney general hopes to restore confidence in the office, The Morning Call (Jan. 15, 2017).
Virginia Attorney General is ramping up his anti-hate crime efforts as have so many other attorneys general as indicated in earlier blogs. No matter what our policy views, hate violence can never be allowed to happen without a strong response from law enforcement.
- See, Attorney General Herring proposes resources to protect Virginians from hate crimes, WSLS10 (Jan. 13, 2017).
One of the great scandals of our criminal justice system is the failure of police departments and prosecutors to expeditiously and appropriately process rape kits. State attorneys general are moving into this void using a variety of techniques including dedicating settlement funds to the processing. In Maryland, Attorney General Brian Frosh has essentially issued a stinging report telling his legislature and Governor to get their acts together. Let's hope that they do.
- Maryland Attorney General's Report
- Press Release, Maryland Attorney General's Office, Office of Attorney General Releases "Statewide Accounting of Untested Sexual Assault Evidence Kits” Report (Jan. 3, 2016).
- Alison Knezevich, Attorney General's report calls for statewide standards on rape kits, The Baltimore Sun (Jan. 3, 2016).