Grant Bosse: Time to rein in the attorney general
New Hampshire Attorney General Michael Delaney’s term is up next month, and the Legislature should take advantage of the transition to rein in an office that has gotten a little out of control.
According to the National Association of Attorneys General, 43 states elect theirs. Governors in Alaska, Hawaii, Wyoming and New Jersey appoint the AG, as we do. Tennessee leaves the appointment to its Supreme Court. The Maine Legislature elects its attorney general, much as we elect the treasurer and secretary of state.
Beyond being nominated by the governor and confirmed by the Executive Council, the New Hampshire Constitution is relatively silent on the duties of the attorney general.
Article 49-A gives the AG and a majority of the council authority to petition the Supreme Court to remove a governor unable or unfit to serve, and unwilling to leave. Article 95 prevents all state cabinets officers and judges from holding elective office, though a stint as AG has been a well-worn stepping stone to higher office, including former governor Steve Merrill and Sen. Kelly Ayotte.
Everything else about this powerful position is left to state law, which provides for a four-year term, requires the AG to be admitted to practice law in New Hampshire and lays out the structure and responsibilities of the Department of Justice. The Legislature is free to change those responsibilities at its pleasure.
In 2011, the House and
Senate wanted New Hampshire to join a group of states challenging the Patient Protection and Affordable Act, while Delaney and then-Gov. John Lynch didn’t. The Legislature passed resolutions directing Delaney to sign up. They figured that since the attorney general represented them in court, they could tell him whom to sue.
In June of that year, the New Hampshire Supreme Court issued an advisory opinion that the AG was part of the Executive Branch, and that taking instruction from the Legislature would violate the separation of powers.
Lawmakers skipped a step. They should have first amended the statute defining the AG’s role and given themselves clear authority to tell their lawyer what to do.
Similar conflict exists when state agencies clash with the Legislature, with the governor or with each other. The attorney general is supposed to represent them all, which is impossible.
Delaney is currently appealing a decision by the Federal Election Commission that he lacks authority to enforce New Hampshire’s push-polling law against federal candidates His quixotic crusade against push polling is supporting only by his tortured interpretation of state statute, but there’s no one with authority to shut him down, even after the FEC ruled against him.
The attorney general currently has broad authority to negotiate settlements in the lawsuits he files. For instance, this week Delaney announced that the Greater Nashua Mental Health Center has agreed to pay $54,000 to resolve claims of improper Medicaid billing.
Settlements can quickly turn into a lucrative revenue stream for the state, such as the MTBE shakedown of the oil industry.
Former attorney general Peter Heed sued 22 oil companies back in 2003 for putting the foul-smelling chemical MTBE in their gasoline, even though federal law required them to use additives to meet clean air standards. There’s no evidence that MTBE is harmful when it gets into your groundwater, but it sure smells bad, and juries don’t like oil companies. While ExxonMobil is finally getting its day in court, the other defendants settled, several in the last few months.
Delaney announced the $35 million settlement with Shell and Sunoco, but the New Hampshire Union Leader had to sue to get the details of settlements with Irving Oil, Vitol, and ConocoPhillips totalling $69.5 million. Such massive authority over the size and disposition of settlements circumvents the state budget process.
The attorney general’s office is also not accountable when it gives bad legal advice. Lynch used a letter from a low-level assistant AG to justify his unconstitutional raid of the Joint Underwriting Association in 2009.
The state Board of Education is using questionable legal advice from the AG as an excuse to deny approval for new charter schools but can’t produce so much as a scrap of paper to support that opinion. The attorney general first and foremost represents the people of New Hampshire, and we have a right to know what our lawyers are thinking.
As Gov. Maggie Hassan selects her pick to run the Justice Department for the next four years, the Legislature should use its sweeping authority to better define whom precisely the New Hampshire attorney general serves.
(Grant Bosse is editor of New Hampshire Watchdog, an independent news site dedicated to New Hampshire public policy.)