My Turn: ‘Reining in’ attorney general is a terrible idea

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Columnist Grant Bosse contends that the Legislature should “rein in” the attorney general by limiting the powers of that office (Sunday Monitor Viewpointspage, Feb. 3). Bosse apparently disagrees with two actions of Attorney General Michael Delaney: his unwillingness to enter a particular Florida lawsuit challenging the constitutionality of the federal Patient Protection and Affordable Care Act (“Obamacare”), and his continued participation in litigation brought by a former attorney general relating to alleged pollution of the state’s groundwater by the gasoline additive MBTE.

Bosse concedes that the New Hampshire Supreme Court rejected the Legislature’s attempt (in a bill promoted by then-Speaker Bill O’Brien and then-Majority Leader D.J. Bettencourt) to require Delaney to join the Florida lawsuit and suggests that the Legislature could simply pass legislation limiting the power of the attorney general to suit its political whims and to constrain the power of that office. Apparently, Bosse failed to read the Supreme Court’s opinion in Opinion of the Justices, 162 N.H. 160 (2011).

Bosse misses a fact that the Supreme Court did not miss: The attorney general is a constitutional officer under Part II, Article 46 of the Constitution and is also a member of the executive branch, Part II, Article 41. As the Supreme Court found, “It is the executive, not the legislative branch, in which the Constitution vests the power to determine the state’s interest in any litigation.”

Enacting legislation limiting that power, including the power of the attorney general to exercise his or her authority as it pertains to the central function of an attorney – to decide what legal positions to take or not to take – would therefore violate the separation of powers provision in Part I, Article 37 of the Constitution. The Supreme Court’s 2011 decision made clear that the Legislature is therefore not empowered to tell the attorney general what legal positions to take (joining a specific lawsuit) or not to take (continuing a prior lawsuit).

Bosse’s proposal is also very bad policy for at least four reasons.

First, if one legislative majority could direct the attorney general to take a particular position in a lawsuit, or limit his or her power in a particular way, surely the next Legislature could direct the opposite result or expand those powers. For example, the Legislature in the state of Washington tried to direct its attorney general to withdraw from the lawsuit challenging the federal health care act. Obviously, the position of the attorney general’s office may change with the office holder, and there is plenty of room for disagreement over the meaning of constitutional provisions or statutes. But the decision should be made on legal grounds, not political ones.

Second, if the Legislature could direct the attorney general to act in a particular way, then surely it could constrain the power of the governor as well, for example, by requiring the appointment of particular individuals to office. But the Supreme Court has already concluded that it may not do so in Brouillard v. Governor and Council, 114 N.H. 541 (1974).

Third, if the Legislature could direct the attorney general in civil matters, it could also do so in criminal prosecutions, ordering the prosecution of whoever the Legislature chooses. As Thomas Jefferson said in 1782, “An elective despotism is not what we fought for.”

Finally, if the Legislature could control what suits the attorney general brought, or the positions taken in those cases, it could force the state’s chief legal officer to take frivolous positions inconsistent with his or her legal judgment. The attorney general should decide what legal path to take for this state, and should do so based on his or her view of the law, not on legislative politics or the popularity of the cause.

Bosse’s column proves the point. He does not (and cannot) say that the attorney general’s position in the matters he raises had no legal merit. (Indeed, on the health care case, the U.S. Supreme Court rejected the Florida challenge.) He simply disagrees with the attorney general’s actions. That is his right. But the attorney general is, after all, the attorney general, not the politician general. Politics, and judgments other than the assessment of the legal merits of a position, should not guide the position taken by legal officers, particularly prosecutors.

Bosse says that state legislators “figured that since the attorney general represented them in court, they could tell him who to sue.” They were wrong, as our Supreme Court found, just as the client of a private lawyer cannot direct a lawyer to take a legal position that is unsound.

Finally, it can hardly be said that New Hampshire’s system of appointed attorneys general has failed the citizens of this state, given the people who have occupied that office. Admittedly, I am biased on this issue, having served as an assistant attorney general under Warren Rudman, David Souter, Tom Rath and Greg Smith. In my view this state has been blessed with superb attorneys general who did not let politics guide their legal positions. There is no reason to now inject politics into that office and great danger in doing so.

(Attorney Bill Glahn lives in Concord. He is also a member of the Concord School Board.)