Tierney Blog


AG Offices are Mounting Challenges on All Fronts

Even as the headlines note the opposition of some attorneys general to the President's immigration policies, other divisions within AG offices are mounting other challenges. This case filed by 5 state AGs is a serious challenge to the President's vehicle policies. In July, the National Highway Traffic Safety Administration’s suspended the rollout of the Obama administration's regulation that would penalize automakers for failing to meet certain fuel emission standards.

Illinois Attorney General Lisa Madigan Takes Action to Compel Reform in the Chicago Police Department

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 Courageous Response to the Voice of Hate

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:

Did the Attorney General of Alabama Once Tell the Ku Klux Klan to 'Kiss My Ass'?http://www.snopes.com/attorney-general-of-alabama-told-the-klan/

Bill Baxley practices law in Birmingham, Alabama: bbaxley@baxleydillard.com

CONTACT: James Tierney, Lecturer on Law, Harvard Law School: jtierney10@gmail.com
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

On Labor Blog: State AGs: Stepping Up to Protect People on the Job

In recent months, progressive state attorneys general have emerged as some of the nation’s foremost champions of civil rights and of humane, sensible policy in the face of declining protection at the federal level. As income inequality grows and too many American workers struggle to get a fair deal in our economy, the role of state attorneys general in enforcing statutes that protect workers’ economic interests has taken on new importance.
— Terri Gerstein, Sharon Block, and Jim Tierney, "State AGs: Stepping Up to Protect People on the Job"

Harvard Berkman Klein Center Announces AG Tech Forum

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.

The AGTech Forum provides state attorneys general with opportunities to engage a diverse cohort of those innovators involved in developing new technologies, and tech developers with a chance to understand the how policymakers and enforcers approach their responsibilities. The Berkman Klein Center brings insights from academic and other constituencies to ensure that all sides benefit from dialogue on neutral ground.
— Harvard Berkman Klein Center

 

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.

Bipartisan Coalition of State AGs Oppose Defunding Legal Services Corporation

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.

Twenty-One AGs Urge Education Secretary to Reconsider Rollback of Student Loan Reforms

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):

In its 2015 report, the CFPB identified troubling student loan servicer practices – including paperwork processing errors and failure to provide accurate information – that discourage the use of income-driven repayment plans. By reforming service incentives and strengthening consumer protections, the rescinded guidance sought to eliminate the loan servicing failures that keep borrowers from entering affordable repayment plans.
— April 24 Letter from 21 State Attorneys General to Department of Education

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.

How an AG Makes Litigation Decisions

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.

NY Attorney General Fights Fraud Against Servicemembers

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.

Connecticut Intervenes to Protect Enhanced Federal Emission Standards

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."

Sabin Center and StateAG.org Launch Environmental Action Database

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.

Maryland Legislature Expands State AG Authority - Finally!

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.

Ky. AG Fosters Stratgeic Partnerships to Fight Consumer Scams

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.

Misclassification is Not Going Away

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.

Appeals Court Upholds AG Ferguson's Victory Against Trump's Immigration Order

No one is above the law, not even the President. The President should withdraw this flawed, rushed and dangerous Executive Order, which caused chaos across the country. If he refuses, I will continue our work to hold him accountable to the Constitution.
— Washington State Attorney General Bob Ferguson

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."

[UPDATED] Democratic AGs Coordinate to Challenge Immigration Order: Washington AG First to File Suit

[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.

 

[UPDATED] State Attorneys General Respond to President Trump’s Refugee Ban

[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.”

Punching Above Their Weight: Profile of the Connecticut AG's Office

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.

Vermont Attorney General Launches Immigration Task Force

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.