Tierney Blog


Bill Sorrell: Still Serving The Public in his Post-AG Life

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 Takeaway: Why Attorney General Races Draw National Attention (and Donations)

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.
— James Tierney

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.

Washington AG Acts to Stop Sexual Harassment of Female Farmworkers; Record Settlement of $525,000

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.

State AGs Should Fill IRS Enforcement Void

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. 

The Role of State AGs in Redistricting in 2020

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.

State Action vs. National Norms in Developing Tech Policy

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.

 

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.” 

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.

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! 

 

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

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.

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.

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."

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.

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.