Capital Closeup | Separation of powers

How should the powers of a state’s attorney general be weighed against those of a state’s legislative branch? That question arose most recently and prominently at the end of 2018 in Wisconsin, when lawmakers made statutory changes in an extraordinary session which altered that power balance in favor of the Legislature.

The moves by the Republican-led Legislature were contentious in large part because they came soon after Democrat Josh Kaul defeated incumbent Republican Attorney General Brad Schimel, and before Wisconsin’s new Democratic governor could block any of the changes.

But this balance-of-power debate is not necessarily new or unique to Wisconsin. It has been part of lawsuits and legislation in other states in recent years — particularly the powers of state attorney generals as they relate to serving as counsel in the federal courts.

Diminished powers?

Wisconsin’s new law (SB 884):

bars the attorney general from settling or withdrawing from civil cases he or she is prosecuting without approval from the Legislature;

• gives the Legislature oversight of proposed settlements or consent decrees in civil cases the attorney general is defending, and requires him or her to put settlement funds into the state’s general fund instead of spending them as he or she sees fit (it also sweeps all unspent settlement funds into the general fund); and
• ends the position of solicitor general, which had been created in 2015 at Schimel’s request. Per the department’s website, the solicitor general represented the state in cases or appeals “that are of special interest to the state” in federal appellate court, as well as the Wisconsin or U.S. supreme courts. (A lawsuit filed in early January alleges the law is void because neither Wisconsin’s Constitution nor laws give the Legislature power to call itself into an extraordinary session.)

Midwestern state constitutions are largely silent as to the office’s responsibilities or obligations, leaving them to statutory definition. An article in the April 2015 edition of the Yale Law Journal — which surveyed the duty of attorneys general to defend state laws — found that all Midwestern states have laws stating some variation of “the attorney general shall represent the state in all cases in which the state is a party or the people of the state are interested.”

Beyond that, Iowa’s attorney general also prosecutes or defends any matter at the request of the governor, executive council or Legislature; Ohio’s attorney general appears for the state “when required by the governor or the general assembly” or prosecutes anyone indicted for a crime “upon written request of the governor.”

In an article in The Council of State Governments’ 2016 “The Book of the States,” authors Emily Myers and Ayeisha Cox cited recent challenges to attorneys general in their role as representative of the state in litigation and ability to determine when to seek judicial review.

They noted that an Indiana case, Buquer v. City of Indianapolis, (filed in 2011 over the constitutionality of an Indiana statute addressing enforcement of immigration laws) resulted in three state senators seeking to intervene to force then-Attorney General Greg Zoeller to defend the entire statute. (Zoeller had said he wouldn’t defend a provision identical to an Arizona law the U.S. Supreme Court found unconstitutional.)

The U.S. district court denied them, citing Indiana case law under which the attorney general “has exclusive power and right in most instances to represent the state.”

The court further declined to allow intervention because “allowing the three individual legislators to intervene here in their official capacities as state senators not only would conflict with this well-settled state law, but would provide the legislators a trump card with respect to the attorney general’s statutorily derived discretion in this context.”

Outside the Midwest, the Maryland Defense Act of 2017 allowed the attorney general to file lawsuits independently, which overturned a Maryland law from 1864 requiring the attorney general to get permission from the governor or legislature to file litigation.

In 2011, New Hampshire’s Supreme Court ruled a law requiring the attorney general to join a lawsuit against the ACA was unconstitutional because it violated the state constitution’s separation-of-powers doctrine.

Capital Closeup is an ongoing series of articles focusing on institutional issues in state governments and legislatures.