Tierney Blog


Peter Brann on Kavanaugh: We’ve seen this movie before

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.” 

A Sophisticated Platform for Anti-Fraud Efforts in the Nonprofit Sphere

Media across the country have carried the story of how all 50 state attorneys general and the Federal Trade Commission came together to crack down on organizations perpetrating fraud against our veterans. This well-coordinated effort, Operation Donate with Honor, is not only a success in and of itself. It also reveals an expanding and sophisticated platform for future anti-fraud efforts in the nonprofit sphere.

The result of years of painstaking work by career prosecutors on both the state and federal level, this initiative highlights the efforts of the National Association of State Charity Officials (NASCO).  A regular visit to NASCO's improved website is in order for anyone interested in nonprofit fraud prosecutions

NJ AG Gurbir Grewal on Faith and the Law

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.

New Civil Rights Unit at the New Hampshire AGO

Congratulations 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.

CA and MA Taking On the Scourge of Wage-Theft

The wage-theft saga continues, as evidenced by these recent actions brought by California Attorney General Xavier Becerra and Massachusetts Attorney General Maura Healey.

In a May 2017 report, the Economic Policy Institute found that in 10 states (California, Florida, Georgia, Illinois, Michigan, New York, North Carolina, Ohio, Pennsylvania, and Texas) 2.4 million workers lose approximately $8 billion annually as a result of receiving an effective hourly rate less than the states' mandated minimum wage. These findings suggest that nationally, employers are pocketing $15 billion in employee wages! This scourge overwhelmingly impacts low-wage industries, where immigrant and other vulnerable, marginalized communities predominate the labor force.

These cases will generally not garner the national spotlight. But they are just as important as the actions that have generated far greater national attention. They have immediate real-life impact on affected communities and send a clear signal that some state attorneys general remain on the labor law enforcement beat.

EPI ReportEmployers steal $15 billion a year from workers by paying less than the minimum wageEconomic Policy Institute, May 10, 2017.

California Case:  Attorney General Becerra Files Suit Against Janitorial Subcontracting Company for Wage Theft and Violating Tax LawsHighland Community News,  Nov 30, 2017.

Massachusetts Case: Sean Philip Cotter, AG: Cohasset hotel didn’t pay workers enough, The Patriot Ledger, Dec 1, 2017.

 

Traditional AG Work Continues

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! 

 

Generic Drug Antitrust Lawsuit Expands

It is no secret that for two years Ct. Attorney General George Jepsen and his experienced antitrust division have been investigating and litigating against generic drug manufacturers. The case exploded this week with the announcement that 46 other attorneys general officially joined the case and asked a federal court to expand both the number of companies from six to eighteen and the number of drugs from two to fifteen. The potential liability to the generics companies is staggering, and the combined strength of 47 state attorneys general makes this one of the major cases pending in the country today.

 

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:
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"