Attorneys General Attorneys General: Working at the Forefront of National Issues by Angelita Plemmer

attorneys general Attorneys General: Working at the Forefront of National Issues By Angelita Plemmer

The National Association of Attorneys General is celebrating its 100th anniversary, and continues to provide attorneys general with an opportunity to work collectively for the common good. Attorneys general are at the forefront of a number of critical legal and law enforcement issues and play a vital leadership role as representatives of the public interest.

The Work of Attorneys General In October 1907, an historic event occurred that As attorneys general are often at the forefront of would change the landscape of law and public policy emerging legal issues, the role of the attorney general in the United States. For the first time in this nation’s in protecting the public interest is becoming more history, a group of state attorneys general met in St. complex with each passing year. And, as NAAG rec- Louis, Mo., to try to coordinate their law enforcement ognizes its 100th year in existence, the next century efforts. Their purpose was to discuss what role, if any, will continue to bring new opportunities for attorneys they could play in response to the anti-competitive general to assume a leadership role in these critical practices of Standard Oil (1870–1911), the largest oil areas of public life. company in the country, based in Cleveland, Ohio. NAAG, and its related Mission Foundation, has a Standard Oil had created a powerful monopoly in the budget of $7.7 million and consists of the chief legal oil industry and consumers were paying the price. officers of the 50 states, the District of Columbia The company began as an Ohio partnership and the U.S. territories of American Samoa, Guam, formed by the well-known industrialist John D. the U.S. Virgin Islands and the commonwealths of Rockefeller, his brother William Rockefeller, Henry Puerto Rico and the Northern Mariana Islands. Flagler, chemist Samuel Andrews, and a silent part- While the visibility of state attorneys general has ner, Stephen V. Harkness. Using highly effective and increased in recent years, the far-reaching and criti- widely criticized tactics, Standard Oil absorbed or cal role that attorneys general play in the operation destroyed most of its competition in Cleveland, then of state government is often misunderstood by the throughout the northeastern United States, putting public. Attorneys general serve as the chief civil numerous small corporations out of business.1 litigator of the state, counseling and defending the State attorneys general, along with the U.S. Depart- state. Attorneys general also issue legal opinions to ment of Justice, succeeded in breaking the monopoly state officials and the public. Attorneys general also and set the stage for what would evolve into one of enforce a variety of civil laws, including consumer the most effective associations of state officials in the protection, antitrust, environment, securities, child country. This year, the National Association of Attor- support enforcement and labor. All that an attorney neys General (NAAG) celebrates its 100th anniversary. general must do is shaped by the ultimate charge to Today, under the auspices of NAAG, attorneys general serve as guardian of the law and in so doing, to have meet three times a year to discuss a number of com- the law serve the public interest.2 plex legal issues facing their states, including antitrust, The myriad of responsibilities of attorneys general consumer protection, public corruption and white col- lend themselves to creative and innovative policy- lar crime, pharmaceutical pricing, victims’ rights, civil making and law enforcement. Their 100 years of col- rights, homeland security, cybercrime, pre-emption of lective experience have shown that some solutions state law, juvenile crime and gangs, tobacco enforce- are best found by working together.3 The following ment, environmental protection, recent decisions by highlights some of these activities: the U.S. Supreme Court, federal legislation and other critical legal areas of interest. During these gatherings, Antitrust attorneys general also meet with the president and The NAAG Antitrust Committee and the Multistate other leaders of the current administration, as well as Antitrust Task Force work to coordinate the exercise members of Congress, to discuss federal policies and of powers of individual attorneys general in antitrust legislation that impact the states. matters. The task force comprises antitrust attorneys

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from the 56 member states and jurisdictions and to the civil rights era. These units would investigate organizes the conduct of multistate investigations unsolved homicides using modern forensic and DNA and the filing of multistate actions. A single attorney techniques. NAAG’s Civil Rights Project provides general or group of attorneys general will take the information and support to the states on affirma- lead in an investigation, issuing administrative sub- tive civil rights issues developed and implemented poenas or civil investigative demands. The parties largely through the efforts of task forces that work in agree that their responses will be shared with other virtually all areas of public life. interested attorneys general. The attorneys general have found that this process not only may reduce the Consumer Protection burden on respondents, it also increases coordination Attorneys general are using traditional enforcement among the states and allows the most efficient use of tools in innovative ways, working together on multistate resources. Attorneys general have investigated state cases in both federal and state courts to protect pharmaceutical pricing, mergers in the oil and airline consumers. These joint actions ensure consistent industries, price-fixing by manufacturers of vitamins enforcement of state consumer protection laws. In and computer hardware, and monopolization of some cases, state attorneys general have at their dis- computer software. The NAAG Antitrust Commit- posal a wider array of enforcement tools and remedies tee advocates competition through policy positions, than are available to their federal counterparts. Joint comments on federal and state legislation, and amicus state actions are widely recognized to be so effective briefs in appropriate antitrust cases. Their goal today, that the Federal Trade Commission now routinely as it was some 100 years ago, is to preserve com- works with state attorneys general to seek coast- petition, and accordingly, lower prices, to provide to-coast injunctions in instances of anti-consumer higher quality and a greater variety of innovative business practices. Recently, attorneys general have new products for residents of their states. NAAG’s worked on predatory lending, consumer privacy and Antitrust Project supports these efforts by facilitating security breaches, and pharmaceutical marketing. communication among attorney general offices, and NAAG’s Consumer Protection Project encourages monitors legislative and regulatory developments in interstate cooperation by facilitating and funding antitrust. multistate working group and litigation discussions and listserves, in addition to training opportunities. Bankruptcy Attorneys general established a NAAG Bankruptcy Criminal Law Project, initially, to assist their offices with present- In most states, the attorney general’s prosecutorial ing their property damage claims in several major role is limited, focused on complex crimes such asbestos bankruptcies. Today, it has been expanded to as Medicaid fraud, environmental crime or public provide assistance to attorneys general with respect corruption. In Delaware, Rhode Island and Alaska, to all bankruptcy issues that might arise. Issues however, the attorney general serves as the sole range from the impact of bankruptcy on state col- prosecutorial authority. Most attorneys general lection of taxes, student loans and domestic support handle criminal appeals. Attorneys general use their obligations, to protection of states from bankruptcy’s offices to advance criminal justice initiatives within potential for interference with critical state police their own jurisdictions and nationwide. For example, and regulatory enforcement activities in areas such many states have passed statutes restricting access to as consumer protection, antitrust, environmental law, precursor chemicals for methamphetamine, based on trade negotiations and tobacco enforcement. a statute originally developed by Oklahoma. Other examples include initiatives related to sex offenders, Civil Rights cybercrime, gang violence and identity theft. Attor- Attorneys general remain active on civil rights issues neys general also advocate for adequate state and such as settlement agreements in housing, employ- local law enforcement assistance funding. NAAG’s ment and mortgage lending discrimination. Many Criminal Law Project supports the work of attorneys state attorneys general continue their active role in general in criminal investigation and prosecution, community education and outreach, which includes and attendant policy issues, including legislative ini- school harassment and disability rights. In addition, tiatives and programs; stays abreast of legal develop- a number of attorneys general are considering the ments in the field; and coordinates and shares NAAG creation of “Cold Case” units to investigate unsolved information with related associations, agencies and homicides, with a focus on racial crimes dating back coalitions.

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Cybercrime ment was enacted, many states followed suit with There are approximately a dozen attorney general parallel state statutes. Attorneys general made use offices where cybercrime units are headquartered. of the new laws and built on existing common law However, the majority of attorney general offices to reduce pollution of the air, land and water. One work with cybercrime units through multidisciplinary area specific to state enforcement is environmental task forces with other state entities, and the actual protection at federal facilities, and attorneys general unit is housed in an alternative agency. Nonetheless, have been diligent in working to safeguard the health attorneys general are taking an active role in fighting and safety of their citizens by pushing the federal cybercrime. Attorneys general across the country regu- government to meet the same standards that private larly propose state legislation to increase penalties for industry must follow. NAAG’s Environment Project online predators who victimize children, the elderly or assists the attorneys general in activities to influence other unsuspecting consumers. Attorneys general are national and regional legal strategies on environ- routinely involved in the education and outreach to all mental matters and provides “capacity-building” consumers to promote online safety, protect consumer assistance that allows the environmental sections of privacy and implement proactive law enforcement attorney general offices to function at a higher level strategies. NAAG has a Cybercrime Project that pro- of efficiency and knowledge through training, legal vides training to staff within attorney general offices analysis and by providing forums for discussion. on the most current information, technologies and approaches to combating computer-facilitated crimes. Medicaid Fraud Through the project, attorneys general and their staffs Attorneys general, charged with the responsibility further explore the legal complexities of spyware and of protecting individuals and state programs from Internet crimes against children, as well as develop an fraud, may rely on their Medicaid Fraud Control Unit understanding of the basics of digital evidence. The (MFCU), an entity of state government, annually project also provides information to state attorneys certified by the secretary of the U.S. Department of general on issues related to funding, equipment and Health and Human Services. MFCUs are funded by manpower requirements, protocols and procedures. the U. S. Department of Health and Human Services, with grant amounts matched by state funding. The End-of-Life Health Care unit has either statewide criminal prosecution author- Attorneys general are charged with protecting con- ity or formal procedures for referring cases to local stituents in matters affecting the public interest, prosecutorial authorities with respect to the detection, including ensuring consumer protections for those investigation and prosecution of suspected crimi- who are dying. The focus for state attorneys general nal violations of the Medicaid program. Forty-two has been in three areas: ensuring the availability MFCUs are housed in attorney general offices, but all of appropriate pain management for citizens while attorneys general are concerned with protecting the aggressively pursuing prosecutions against those public, particularly its most vulnerable—those who who illegally divert controlled substances; ensuring may be the victims of abuse or neglect as residents competent end-of-life care for citizens; and ensur- of health care facilities that receive Medicaid funds. ing that state policies acknowledge and respect the NAAG’s MFCU Project provides a forum for the wishes of those who are at the end of their lives. mutual exchange of views and experiences on sub- Many attorney general offices provide invaluable jects of importance to the state Medicaid Fraud Con- information to consumers to ensure that they are trol Units and fosters interstate cooperation on legal making informed health care decisions and that their and law enforcement issues affecting the unit. wishes are clearly articulated to family members, caregivers and health care providers. NAAG’s End Legislative of Life Health Care Project serves as an informa- Frequently, attorneys general across the country are tion clearinghouse for attorney general offices and asked by Congress, the media, business organizations provides invaluable links to various organizations and constituents for their views on bills pending in involved in end-of-life issues. Congress that affect the powers and duties of attorneys general. Often, such legislation seeks to pre-empt Environment state law in the areas of consumer protection, environ State attorneys general have been at the forefront of ment, antitrust, bankruptcy, securities, criminal law environmental law developments during the last 30 and many other areas within the jurisdiction of attor- years. As national legislation protecting the environ- neys general. NAAG’s Legislative Project serves as

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the initial point of contact for information requests public health provisions designed to reduce youth from attorney general offices, members of Congress/ smoking. It prohibits tobacco companies from target- staff, and other interested associations and individu- ing youth in advertising, promotions or marketing. It als about attorney general views on federal legisla- also bans industry actions aimed at initiating, main- tion. The Legislative Project remains current on taining or increasing youth smoking. Other provisions federal legislation of interest to attorneys general, of the agreement ban all outdoor advertising, includ- and the project assists in the development of policy ing billboards, signs and placards in arenas, stadi- positions on issues as directed by state attorneys gen- ums, shopping malls and video game arcades; limit eral, ensuring that all perspectives are examined. advertising signage outside of retail establishments Attorneys general are often at the front lines of to a size of 14 square feet; and ban transit advertising emerging legal and law enforcement trends and can of tobacco products. Tobacco companies are also pro- provide a unique and valuable perspective at the fed- hibited from attempting to suppress research about eral and state level. the health hazards from the use of their products or into the marketing or development of new products; Appellate Advocacy and they are prohibited from making any material Attorneys general will appear on behalf of their states misrepresentations regarding the health consequence or agencies in the U.S. Supreme Court. Attorneys of smoking. NAAG’s Tobacco Project helps attorneys general are second only to the United States Solicitor general enforce the provision of the MSA by provid- General, who represents the federal government, in ing litigation support, technical assistance and legal frequency of appearance before the nation’s highest analysis. As the chief legal officers of their respective court. The attorneys general will typically represent jurisdictions, attorneys general have played a critical the state and many, if not all, state agencies. During role in ensuring MSA compliance by tobacco compa- the 1980s, attorneys general took a number of impor- nies and protecting the public health and safety. tant steps to improve their individual and collective Supreme Court advocacy work. One step included Conclusion creating NAAG’s Supreme Court Project, which Attorneys general serve as guardians of the law and helps attorneys general present cases effectively ensure that these laws serve the public interest. Their before the Court, both as parties and collectively as cooperative efforts, born a century ago, have had a amici curiae.4 tremendous impact on public life. As individuals or The Project’s Moot Court Program conducts moot working collectively through NAAG, attorneys gen- courts for virtually every state attorney who argues eral will continue to be at the forefront of emerging in the Court. Moot court panelists are Supreme Court state and federal issues. practitioners, including members of the U.S. Solici- tor General’s Office, former Supreme Court clerks Notes and Supreme Court experts in academia and private 1 Ralph W. Hidy and Muriel E. Hidy, Pioneering in Big practice. On the written advocacy side, project coun- Business, 1882–1911: History of Standard Oil Company, sel edits about 40 merit briefs, cert petitions, briefs (New Jersey, 1955). in opposition and amicus briefs filed in the Supreme 2 Charles Burson, State Attorneys General: Guardians of Court each term. In addition to training and legal the Law, (Washington, D.C.: National Association of Attor- analysis, the project sponsors an intense Supreme neys General, 1994–95). Court Fellows Program, designed to give state law- 3 Ibid. 4 yers an opportunity to obtain direct and intensive Lynne Ross, editor, State Attorneys General Powers and Responsibilities, (Washington, D.C.: NAAG, 1990). hands-on exposure to Supreme Court practice. Tobacco About the Author Since 1998, almost 50 tobacco manufacturing com- This article was edited and compiled by Angelita Plemmer, panies (known as Subsequent Participating Manu- director of communications for the National Association of facturers under the agreement) have joined the 1998 Attorneys General. A former newspaper journalist, Plemmer landmark Tobacco Master Settlement Agreement. joined the association staff in 2001. She formerly worked as the public information officer for the city of Roanoke, Va., and as Attorneys general hope other tobacco companies that the assistant city manager for public information for the city of have not joined the agreement will join to make the Alexandria, Va. She holds a master’s degree in journalism from coverage of the MSA close to universal. The MSA, Columbia University and a Bachelor of Arts degree in rhetoric enforced by attorneys general, contains a number of and communications studies from the University of Virginia.

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