State Attorneys General have never fit easily into the existing framework of state government. All but two states (Alaska and Wyoming)  have rejected the federal model in which the Attorney General serves at the pleasure of the Chief Executive, and this “divided executive” results in numerous possible conflicts as the Attorney General attempts to represent the “client,” which could be the Governor, the state agency, or the public interest.

This Chapter explores the independence inherent in the office of a modern Attorney General.  It contains readings that make clear the underlying rationale for its common law authority and the need for an attorney general to represent all of the people of the state - the public interest - when a "client" state agency acts in ways inconsistent with its responsibilities.  It also introduces the concept of parens patriae to the discussion of attorney general authority and the affirmative duty for an attorney general to create consistency in appellate advocacy even if varying state stakeholders disagree.

This Chapter includes a generic organizational chart the merits in depth attention.  It describes the actual functionality of offices of an attorney general in a manner that suggests how inthernal decision making can be accomplished.  It also includes an interactive, role playing hypothetical that explores how these difficult decisions are actually made.

Note: Links to the readings below open in this window/tab in H20 Casebook. Use your browser’s “back” button to return to the syllabus.

  1. Feeney v. Commonwealth: 373 Mass. 359 1977-09-16
  2. People ex rel. Deukmejian v. Brown: 29 Cal. 3d 150 1981-03-12
  3. William P. Marshall, Break Up the Presidency? Governors, State Attorneys General and Lessons from the Divided Executive, 115 Yale L.J. 2445-2469 (2006).
  4. Generic State Attorney General's Office Organization Chart
  5. Delaware AG Investigates Own Client, Celia Cohen, Grapevine Political Writer, Sept. 15, 2007.
  6. For Democratic governors, it pays to have a Democratic attorney general. Republicans, not so much, Nicholas Miras, Washington Post, Aug. 3, 2020
  7. "AGs' powers a subject of contention." Denver Post Capitol Bureau, Martinez, J. C. (2003, December 7).
  8. "High Court to Hickenlooper: We're not getting involved". Colorado Independent, Corey Hutchins (December 03, 2015).
  9. No Charges to Be Filed In Prison Sentence Screw-Up, Nebraskawatchdog.Org, November 24, 2014.
  10. Terrie, Morgan-Besecker, "DA refers prison sex abuse probe to state attorney general's office," The Times-Tribune, Jan. 7, 2017.
  11. "Who is the Client?" – A Role Playing Hypothetical

Supplemental Readings:

  1. State Ex. Rel. Attorney General Mark Brnovich v. Arizona Board of Regents, Arizona Supreme Court, CV 19- 0247, November 25, 20209 (Edited)
  2. State Ex. Rel. Attorney General Mark Brnovich v. Arizona Board of Regents, Arizona Supreme Court, CV 19- 0247, Academic Amicus Brief, March 31, 2020 (Edited)
  3. Opinion of the Justices, Maine Supreme Judicial Court, March 10. 2015 (Edited)
  4. Opinion of the Justices, Maine Supreme Judicial Court, Amicus Brief of Peter Brann, February 6, 2015 (Edited)