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Week 1- Parens Patriae and the Role of the Attorney General
“Parens Patriae” underlies much of the jurisdiction and culture of state attorneys general. By invoking this common law power, an attorney general assumes the duty to represent all the citizens of a state and not just the interests of a state agency. Parens patriae is most often specifically alleged in consumer, antitrust, environmental and charities litigation, but in a broader sense it describes the “fix it” culture that pervades attorney general practice. The first class will explore the nature of that authority.
  • 1 State of Rhode Island v. Lead Paint Assoc. et. al., Appeal No. 2007-121. (Section III.) July 1, 2008, 951 A 2d 428 (2008)

    951 A.2d 428 (2008)
    STATE of Rhode Island
    Nos. 2004-63-M.P., 2006-158-Appeal, 2007-121-Appeal.

    Supreme Court of Rhode Island.

    July 1, 2008.

    434*434 Neil Kelly, John McConnell, Fidelma Fitzpatrick, Genevieve Allaire-Johnson, James Lee, Providence, for Plaintiff.


    John A. MacFadyen, III, Donald Scott, Pro Hac Vice, Joseph Cavanagh, Laura Ellsworth, Pro Hac Vice, Paul M. Pohl, Pro Hac Vice, Thomas Bender, William Kayatta, Pro Hac Vice, John Tarantino, for Defendants.




    Addressing the issues seriatim for a unanimous Court, Chief Justice Williams authored Tracks I and II and Associate Justices Suttell, Flaherty, and Robinson authored Tracks III, IV, and V, respectively. In this landmark lawsuit, filed in 1999, the then Attorney General, on behalf of the State of Rhode Island (the state), filed suit against various former lead pigment manufacturers and the Lead Industries Association (LIA), a national trade association of lead producers formed in 1928.


    After the first trial resulted in a mistrial, a second trial commenced; that second trial, spanning four months, became the longest civil jury trial in the state's history.[1] This monumental lawsuit[2] marked the first time in the United States that a trial resulted in a verdict that imposed liability on lead pigment manufacturers for creating a public nuisance.


    After a four-month trial, which concluded on February 22, 2006, a jury found defendant manufacturers, NL Industries, Inc. (formerly National Lead Co.) (NL), The Sherwin-Williams Co. (Sherwin-Williams), and Millennium Holdings LLC (Millennium) (collectively defendants), liable under a public nuisance theory.[3] Both before and after the jury returned its verdict, the trial justice issued nineteen written decisions, ruling on a variety of pretrial, trial, and post-trial motions that both the state and defendants had filed. The defendants filed an appeal from the judgment entered against them. The state, for its part, appealed the judgment in favor of defendant Atlantic Richfield Co. (ARCO) and two contempt orders that had been entered against the Attorney General. In addition, in 2004, defendants had petitioned this Court for a writ of certiorari to review the issue of contingency fees. We issued the writ, but thereafter concluded that the matter was not then justiciable. See State v. Lead Industries Association, Inc., 898 A.2d 1234, 1235 (R.I.2006). The 435*435 defendants have asked this Court to entertain that petition again. Finally, the state cross-appealed on the issue of compensatory damages.


    Because of the sheer number of parties and the complexity of issues involved in these appellate proceedings, this Court consolidated all the appeals filed with this Court and established a five-track procedure for the briefing of all pending appeals and cross-appeals. The five tracks are: (1) the individual liability appeals of defendants, Millennium, NL, and Sherwin-Williams, from the judgment of abatement in favor of the state; (2) the state's cross-appeal on the issue of compensatory damages; (3) the state's appeal from the judgment in favor of ARCO and ARCO's conditional cross-appeal; (4) the state and the Attorney General's appeal of contempt orders entered in December 2005 and June 2006 against the state Attorney General; and (5) the issue of the propriety of the state's entering into a contingency fee agreement with private counsel to prosecute the public nuisance action, which issue is before us pursuant to our issuance of a writ of certiorari. This Court heard oral arguments on each appeal on May 15, 2008. This opinion addresses the issues seriatim.

    Track I


    Chief Justice WILLIAMS, for the Court.


    On appeal from, inter alia, the trial justice's denial of their motion to dismiss, their renewed motion for judgment as a matter of law, and their alternative motion for a new trial, defendants, Millennium, NL, and Sherwin-Williams, argue that the trial justice erred by: (1) misapplying the law of public nuisance; (2) finding a causal connection between defendants' actions and lead poisoning in Rhode Island; and (3) failing to hold that this action is barred by the constitutional provision concerning separation of powers. In addition, defendants direct this Court's attention to a variety of alleged errors occurring at trial, some of which they contend amount to violations of both the United States and Rhode Island constitutions. For the reasons set forth herein, we reverse the judgment of the Superior Court as to the liability of defendants, Millennium, NL, and Sherwin-Williams, because we conclude that the trial justice erred by denying defendants' motion to dismiss. More specifically, we conclude that the state has not and cannot allege any set of facts to support its public nuisance claim that would establish that defendants interfered with a public right or that defendants were in control of the lead pigment they, or their predecessors, manufactured at the time it caused harm to Rhode Island children.


    In reaching this conclusion, we do not mean to minimize the severity of the harm that thousands of children in Rhode Island have suffered as a result of lead poisoning. Our hearts go out to those children whose lives forever have been changed by the poisonous presence of lead. But, however grave the problem of lead poisoning is in Rhode Island, public nuisance law simply does not provide a remedy for this harm. The state has not and cannot allege facts that would fall within the parameters of what would constitute public nuisance under Rhode Island law. As set forth more thoroughly herein, defendants were not in control of any lead pigment at the time the lead caused harm to children in Rhode Island, making defendants unable to abate the alleged nuisance, the standard remedy in a public nuisance action. Furthermore, the General Assembly has recognized defendants' lack of control and inability to abate the alleged nuisance because it has placed the burden on landlords and property 436*436 owners to make their properties lead-safe.


    This Court is bound by the law and can provide justice only to the extent that the law allows. Law consists for the most part of enactments that the General Assembly provides to us,[4] whereas justice extends farther. Justice is based on the relationship among people, but it must be based upon the rule of law. This Court is powerless to fashion independently a cause of action that would achieve the justice that these children deserve. United States Supreme Court Justice Benjamin N. Cardozo, a rightly revered student of the law, once summarized as follows the inherent limitations of the judicial role:

    "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to `the primordial necessity of order in the social life.'" Benjamin N. Cardozo, The Nature of the Judicial Process 141 (1921) (quoting François Gény, Méthode d'Interprétation et Sources en droit privé positif, vol. II, p. 303, sec. 200, ed. 1919; transl. Modern Legal Philosophy Series).

    Likewise, in the words of United States Supreme Court Chief Justice John G. Roberts, Jr., "judges must be constantly aware that their role, while important, is limited. They do not have a commission to solve society's problems, as they see them, but simply to decide cases before them according to the rule of law." John G. Roberts, Jr., United States Senate Committee on the Judiciary Questionnaire 66, http:// 20050802roberts2.pdf) (August 2, 2005). In recognition of this philosophy, we consistently have adhered to "principles of judicial restraint [that] prevent [courts] from creating a cause of action for damages in all but the most extreme circumstances." Bandoni v. State, 715 A.2d 580, 595 (R.I.1998). Indeed, we long have held "that the creation of new causes of action is a legislative function." Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I.1996). After all, the judiciary's "duty [is] to determine the law, not to make the law." City of Pawtucket v. Sundlun, 662 A.2d 40, 57 (R.I.1995). "To do otherwise, even if based on sound policy and the best of intentions, would be to substitute our will for that of a body democratically elected by the citizens of this state and to overplay our proper role in the theater of Rhode Island government." DeSantis v. Prelle, 891 A.2d 873, 881 (R.I.2006).


    Facts and Travel

    It is undisputed that lead poisoning constitutes a public health crisis that has plagued and continues to plague this country, particularly its children. The General Assembly has declared that although "[c]hildhood lead poisoning is completely preventable," G.L. 1956 § 23-24.6-2(3), it is "the most severe environmental health problem in Rhode Island." Section 23-24.6-3. Indeed, Providence has received the unfavorable nickname "the lead paint capital" because of its disproportionately large number of children with elevated blood-lead levels. Lead Industries Association, 437*437 Inc., 898 A.2d at 1235 (quoting Peter B. Lord, Are lead-paint firms liable for damages?, The Providence Journal, June 18, 1999, at A-1).


    Dangers of Lead Poisoning

    Lead is a toxic chemical that contributes to the "most common environmental disease of young children." Office of Lead-Based Paint Abatement and Poisoning Prevention, 61 Fed. Reg. 29170 (June 7, 1996) (quoting Strategic Plan for the Elimination of Lead Poisoning, Centers for Disease Control (CDC), U.S. Department of Health and Human Services, Atlanta, Georgia (1991)). There seems to be little public debate that exposure to lead can have a wide range of effects on a child's development and behavior. Contact with low levels of lead may lead to "permanent learning disabilities, reduced concentration and attentiveness and behavior problems, problems which may persist and adversely affect the child's chances for success in school and life." Section 23-24.6-2(1). The consequences are more injurious when children are exposed to higher lead levels. Office of Lead-Based Paint Abatement and Poisoning Prevention, 61 Fed. Reg. at 29170. Children exposed to elevated levels of lead can suffer from comas, convulsions, and even death. Id.


    Lead was widely used in residential paints in the United States until the mid-1970s. Id. at 29171. There is no doubt that lead-based paint is the primary source of childhood lead exposure. Id. (citing Preventing Lead Poisoning in Young Children, CDC, U.S. Department of Health and Human Services, Atlanta, Georgia (1991) and Rabinowitz, M. et al., Environmental Correlates of Infant Blood Lead Levels in Boston, Environmental Research 38: 96-107 (1985). In the United States, children most often are lead-poisoned by ingesting lead paint chips from deteriorating walls or inhaling lead-contaminated surface dust. Id.


    Children under six years of age are the most susceptible to lead poisoning for two primary reasons. First, children are more likely to encounter lead; young children spend a significant portion of their time on the floor, among the dust and chips of lead paint. Second, because they are young, children's growing bodies have a tendency to absorb more lead, and their brains and nervous systems are more sensitive to the lead.


    Most lead pigment manufacturers belonged to the LIA as early as 1928, but the length of each company's membership varied considerably. Sherwin-Williams discontinued its membership in 1947, whereas Millennium remained a member until 1960, and NL remained a member until 1982. At trial, the state offered the minutes of a December 12, 1930, LIA board of directors meeting, containing a section titled "Lead Poisoning." The minutes refer to a discussion of recent news articles concerning the dangers of lead-based paint, including an article in the November 20, 1930, edition of The United States Daily, which reported: "Lead poisoning as a result of chewing paint from toys, cradles and woodwork is now regarded as a more frequent occurrence among children than formerly." Lead-free paint on furniture and toys to protect children, The United States Daily, Nov. 20, 1930. The minutes implied doubt about the extent of the problem, but demonstrated emerging knowledge of the problem within the industry.


    Lead Poisoning in Rhode Island

    Patricia A. Nolan, M.D., former director of the Rhode Island Department of Health (RIDOH), testified that from January 1993 438*438 to December 2004 at least 37,363 children in Rhode Island were poisoned by lead in paint. In 2004, a total of 1,685 children in Rhode Island were affected. Rhode Island Department of Health, Childhood Lead Poisoning in Rhode Island: The Numbers 2005 Edition 4, 19 (hereinafter The Numbers 2005). Of this number, almost 70 percent of the children (1,167) were newly poisoned in 2004. Id. Fortunately, the prevalence of lead poisoning in children under the age of six recently has declined. Id. In 2005, RIDOH reported a 76 percent decline in the number of lead-poisoned children — from 20.5 percent in 1995 to 5 percent in 2004. Id. However, despite this significant decrease in childhood lead poisonings, the 5 percent prevalence rate is more than double the national average of 2.2 percent. Id.


    Legislative Responses

    In 1971, Congress recognized the prevalence of childhood lead poisonings and enacted chapter 63 of title 42 of the United States Code, the Lead-Based Paint Poisoning Prevention Act (LPPPA), a law aimed at studying the effects of childhood lead exposure and eliminating lead-based paint from federally owned or federally financed housing. Finally, in 1978, the Consumer Product Safety Commission banned the sale of residential paint containing more than 0.06 percent lead. See Ban of Lead-Containing Paint and Certain Consumer Products Bearing Lead-Containing Paints, 16 C.F.R. § 1303.1 (2008); see also Office of Lead-Based Paint Abatement and Poisoning Prevention, 61 Fed. Reg. at 29171.


    Rhode Island, with a housing stock of older homes, also has recognized the depth of this problem.[5] In the early 1990s, the General Assembly began an investigation into childhood lead poisoning in Rhode Island. The General Assembly found that the "[e]nviromental exposure[] to even low levels of lead increase[s] a child's [health] risk," and that "[t]he most significant sources of environmental lead are lead-based paint in older housing and house dust and soil contaminated by this paint." Section 23-24.6-2(1), (2). It also found that "tens of thousands of Rhode Island's children are poisoned by lead at levels believed to be harmful," and that "[c]hildhood lead poisoning is dangerous to the public health, safety, and general welfare of the people and necessitates excessive and disproportionate expenditure of public funds for health care and special education, causing a drain upon public revenue." Section 23-24.6-2(4), (5).


    In response to these findings, in 1991 (P.L. 1991, ch. 355, § 1), the General Assembly enacted the Lead Poisoning Prevention Act (LPPA), chapter 24.6 of title 23, which required RIDOH to implement various programs, including statewide blood-screening programs, lead-poisoning prevention programs, and educational programs. Section 23-24.6-5(a). The LPPA's stated purpose was to establish "a comprehensive program to reduce exposure to environmental lead and prevent childhood lead poisoning, the most severe environmental health problem in Rhode Island." Section 22-24.6-3.


    To supplement this initiative, in 2002, the General Assembly later enacted the Lead Hazard Mitigation Act (LHMA) (P.L. 2002, ch. 187, § 3), G.L. 1956 chapter 128.1 of title 42, to help identify and correct lead hazards in this state. See Mackie v. State, 936 A.2d 588, 590 (R.I.2007). The LHMA imposed, inter alia, several 439*439 duties on the owners of rental dwellings that were constructed prior to 1978, which included correcting lead hazards on their premises. Id. (citing § 42-128.1-8(a)). This Court upheld challenged provisions of the LHMA in 2007. Id. at 597 (concluding that provisions of the LHMA were constitutional because "the General Assembly rationally could have concluded that the legislation was one step toward resolving the problem of lead poisoning of children in Rhode Island").


    The General Assembly's programs for curtailing the incidence of lead poisoning in Rhode Island have been successful. Since the LPPA and LHMA have been in effect, Rhode Island has experienced a substantial decline in the number of lead-poisoned children. In 2004, Dr. Nolan acknowledged that since 1994, there has been a dramatic decrease in the incidence of lead poisoning among Rhode Island children. Rhode Island Department of Health, Childhood Lead Poisoning in Rhode Island: The Numbers 2004 Edition 1 (hereinafter The Numbers 2004). In fact, at trial, Dr. Nolan agreed that the progress has proven to be a "public health success story."


    RIDOH reported, in 2004, a number of accomplishments, highlighting five programs in particular. RIDOH implemented the Lead Elimination Surveillance System database, which increased the efficiency of collecting and analyzing data. The Numbers 2004 at 4. The Keep Your Baby Lead Safe program, an undertaking designed to reach pregnant women and facilitate access to a lead-safe home was enhanced, providing mothers-to-be with lead education as well as referrals to numerous community resources. Id. RIDOH also provided information and education to pregnant women, parents, physicians, and other professionals, enhanced case management through certified lead centers, and implemented the initial steps required by the LHMA. Id. at 4-5.


    The General Assembly's approach to Rhode Island's lead paint problem and RIDOH's promulgation of regulations aimed at reducing lead hazards have proven effective and, as a result, the entire state — including its "core cities"[6]—has experienced substantial declines in lead poisoning. The Numbers 2005 at 15.


    Attorney General's Lawsuit

    On October 12, 1999, the Attorney General, on behalf of the state filed a ten-count complaint against eight former lead pigment manufacturers, John Doe corporations, and the LIA.[7] The manufacturers were: NL, Sherwin-Williams, ARCO, The Glidden Company,[8] The O'Brien Corporation,[9] SCM Chemicals (SCM), American Cyanamid Company,[10] and E.I. Du Pont de 440*440 Nemours and Company.[11] The state later amended its complaint to include the ConAgra Grocery Products Company.[12] A second-amended complaint added Cytec Industries, Inc.[13] and substituted Millennium Inorganic Chemicals, Inc. for SCM.[14]


    The state alleged that the manufacturers or their predecessors-in-interest had manufactured, promoted, distributed, and sold lead pigment for use in residential paint, despite that they knew or should have known, since the early 1900s, that lead is hazardous to human health. The state also contended that the LIA was, in essence, a coconspirator or aider and abettor of one or more of the manufacturers from at least 1928 to the present. The state asserted that defendants failed to warn Rhode Islanders of the hazardous nature of lead and failed to adequately test lead pigment. In addition, the state maintained that defendants concealed these hazards from the public or misrepresented that they were safe. The state further alleged that defendants' actions caused it to incur substantial damages. As such, the state asserted, defendants were liable for public nuisance, violations of Rhode Island's Unfair Trade Practices and Consumer Protection Act, strict liability, negligence, negligent misrepresentation, fraudulent misrepresentation, civil conspiracy, unjust enrichment, and indemnity. The state also requested equitable relief to protect children in Rhode Island.[15] The state sought compensatory and punitive damages, in addition to an order requiring defendants to (1) abate lead pigment in all Rhode Island buildings accessible to children and (2) fund educational and lead-poisoning prevention programs.


    In January 2000, defendants moved to dismiss all counts of the state's complaint pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure. With respect to the public nuisance claim, defendants asserted that they did not control the lead pigment at the time it caused harm to Rhode Island children and that, therefore, they cannot be held liable for public nuisance. The defendants also argued that there was no interference with a public right, as that term has been recognized under public nuisance law. For its part, however, the state countered that the public nuisance claim was proper because defendants could be held liable regardless of whether they currently control the lead-poisoned properties. The state urged that defendants' participation in the creation of the nuisance should subject them to liability. The trial justice, agreeing with the state, denied defendants' motion.


    The trial justice dismissed several other counts and ordered that the case be tried in three phases. Eventually, only the state's public nuisance claim proceeded to 441*441 trial. After a seven-week trial, however, the jury was deadlocked and the trial justice declared a mistrial.


    Before a second trial commenced, the state moved to strike defendants' demand for a jury trial, contending that its public nuisance claim was equitable in nature and that defendants had no right to a jury trial on that issue. At that time, the state voluntarily dismissed with prejudice all other non-equitable claims remaining in the case, including the following counts: strict liability, negligence, negligent misrepresentation, and fraudulent misrepresentation. The trial justice, however, denied the state's motion to strike the jury demand, concluding that the existence of a nuisance was a factual issue to be resolved by a jury and, further, that the state's demand for compensatory and punitive damages entitled defendants to a jury trial.


    Before trial, the state moved in limine to exclude all evidence and testimony with respect to the presence or absence of lead paint in any individual Rhode Island property; the trial justice granted this motion. In so ruling, the trial justice noted that "property specific evidence is irrelevant in connection with the issue of whether the cumulative effect of such pigment in all such buildings * * * was a public nuisance * * *."


    The defendants then moved for summary judgment with respect to the civil conspiracy count of the state's complaint. The trial justice granted defendants' motion, concluding that "civil conspiracy cannot stand in isolation," but rather, must be accompanied by an "underlying intentional tort theory." Because all the intentional tort theories had been dismissed, the trial justice concluded that it was proper to dismiss the civil conspiracy count as well.


    The defendants also moved for summary judgment on the basis that the state could not identify any specific defendant whose lead pigment is present in any Rhode Island property. To support their motion, defendants relied primarily on this Court's decision in Gorman v. Abbott Laboratories, 599 A.2d 1364, 1364 (R.I.1991) (mem.), in which this Court rejected the market-share theory of products liability that the California Supreme Court had adopted. The trial justice denied defendants' motion, stating that product identification is not a necessary element in a public nuisance suit. Rather, the trial justice ruled that the state "need only show that each defendant (or such defendants as it seeks to hold liable for the public nuisance here claimed) has engaged in activities which were a substantial factor in bringing about the alleged public nuisance and the injuries and harm found to have been proximately caused thereby."


    After these and other motions were dealt with, the second trial proceeded, this time against only four manufacturers — Millennium, NL, Sherwin-Williams, and ARCO.


    At trial, the state presented witnesses who offered historical evidence about the use of lead pigment in paint, the impact of childhood lead poisoning on Rhode Island, and defendants' conduct concerning lead pigment in paint.


    After the state rested, defendants moved immediately for judgment as a matter of law pursuant to Rule 50 of the Superior Court Rules of Civil Procedure. Their primary contention was that the state had failed to prove a sufficient nexus between defendants' activities and the presence of lead pigment in Rhode Island. After hearing the arguments of counsel, the trial justice granted defendants' motion with respect to the state's indemnification and unjust enrichment claims and its request for compensatory damages. The court reserved judgment, however, on whether the state had proven a sufficient 442*442 nexus between defendants' activities and the presence of lead pigment in Rhode Island.


    The trial justice provided the jury with the law applicable to the case and instructed the jury to apply that law to the facts as it found them based on the evidence presented. First, the trial justice explained that the jury was being asked to determine "whether the cumulative presence of lead pigment in paints and coatings in or on buildings throughout the state of Rhode Island constitutes a public nuisance." He defined public nuisance as "something that unreasonably interferes with a right common to the general public. It is something that unreasonably interferes with the health, safety, peace, comfort or convenience of the general community." He further explained that the right common to the general public is collective in nature and belongs to the community at large. The trial justice then clarified that "an interference is an injury, invasion, disruption, or obstruction of a right held by the general public." He added that an interference "is unreasonable when persons have suffered harm or are threatened with injuries that they ought not have to bear."


    After providing the jury with a definition of public nuisance and detailing the elements, the trial justice also told the jury that if it found that a public nuisance exists, it then must determine whether defendants' actions were the proximate cause of the nuisance. He defined proximate cause as "a cause that in a natural, continuous, and unbroken sequence produces an event or injury and without which the event or injury would not have occurred."


    Lastly, the trial justice instructed the jury that if it concluded that the cumulative presence of lead pigment in paint is a public nuisance and that defendants are liable, it then must decide whether any defendants should abate the public nuisance. The trial justice provided the jury with written copies of the instructions.


    The jury began deliberations on February 14, 2006, and returned its verdict on February 22, 2006; it found that the "cumulative presence of lead pigment in paints and coatings on buildings throughout the State of Rhode Island" constituted a public nuisance. The jury further found that defendants, Millennium, NL, and Sherwin-Williams, were liable for causing or substantially contributing to the creation of the public nuisance. Lastly, the jury concluded that those three defendants "should be ordered to abate the public nuisance." The jury found that a fourth defendant, ARCO, was not liable.


    After the verdict, defendants renewed their motions for judgment as a matter of law pursuant to Rule 50 and moved alternatively for a new trial pursuant to Rule 59 of the Superior Court Rules of Civil Procedure. The trial justice denied both these motions. While these motions were pending, defendant Sherwin-Williams filed with the Superior Court supplemental motions pursuant to Rules 26(e), 59, 60(b)(2), and 60(b)(3) of the Superior Court Rules of Civil Procedure; defendants Millennium and NL joined in these motions. Again, the trial justice denied all of these motions.


    On March 16, 2007, the court entered a judgment of abatement in favor of the state against defendants, Millennium, NL, and Sherwin-Williams, from which they appeal.


    Additional facts will be provided as necessary.




    Standard of Review

    When reviewing a trial justice's decision on a Rule 12(b)(6) motion to dismiss, 443*443 this Court applies the same standards as the trial justice and, accordingly, "must assume that the allegations contained in the complaint are true, and examine the facts in the light most favorable to the nonmoving party." A.F. Lusi Construction, Inc. v. Rhode Island Convention Center Authority, 934 A.2d 791, 795 (R.I. 2007) (internal quotation marks omitted). Like the trial justice, we will "examine the complaint to determine if plaintiffs are entitled to relief under any conceivable set of facts." Id.


    Public Nuisance

    The defendants first argue that the trial justice erred in refusing to dismiss the public nuisance count set forth in the state's complaint. They also argue that the trial justice erred in denying their motion for judgment as a matter of law. The defendants contend that the public nuisance claim should have been dismissed at the outset—or, at the very least, that judgment as a matter of law should have been entered in their favor because suppliers of lead pigment cannot be held liable under a public nuisance theory for harm resulting from lead-based paint in Rhode Island. In addition, defendants argue that the trial justice erred when he instructed the jury on the law of public nuisance. We agree with defendants that the public nuisance claim should have been dismissed at the outset because the state has not and cannot allege that defendants' conduct interfered with a public right or that defendants were in control of lead pigment at the time it caused harm to children in Rhode Island. We reach this conclusion with a keen realization of how limited the judicial system often is. We believe that the following recent observation by this Court in another case is equally applicable to this case:

    "The American judicial system as it exists today is admirable: it is the product of many decades of fine-tuning of an already excellent substantive and procedural construct which this country took with it when it parted ways with England. Nevertheless, our judicial system is not a panacea that can satisfy everyone who has recourse to it. Some wrongs and injuries do not lend themselves to full redressment by the judicial system." Ryan v. Roman Catholic Bishop of Providence, 941 A.2d 174, 188 (R.I.2008).


    History of Public Nuisance

    The definition of public nuisance and the description of the elements comprising this cause of action have been developed and refined by this Court over the years. Mindful of the admonition of United States Supreme Court Justice Oliver Wendell Holmes, Jr. that "[i]n order to know what [the law] is, we must know what it has been, and what it tends to become" as that is "necessary to the knowledge of what the law is," we begin our analysis by retracing the history of public nuisance at common law. Oliver Wendell Holmes, Jr., The Common Law 1, 37 (Dover ed., General Publishing Co., Ltd., 1991) (1881).


    Today, public nuisance and private nuisance are separate and distinct causes of action, but both torts are inextricably linked by their joint origin as a common writ, dating to twelfth-century English common law. See Richard O. Faulk and John S. Gray, Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation, 2007 Mich. St. L. Rev. 941, 951 (2007) (citing C.H.S. Fifoot, History and Sources of the Common Law: Tort and Contract 3-5 (1949)); Donald G. Gifford, Public Nuisance as a Mass Products Liability 444*444 Tort, 71 U. Cin. L. Rev. 741, 790-91, 794 (2003)). In its earliest form, nuisance was a criminal writ used to prosecute individuals or require abatement of activities considered to "be `nocumentum iniuriousum propter communem et publicam utiliatem' — a nuisance by reason of the common and public welfare." Gifford, 71 U. Cin. L. Rev. at 793-94 (citing Henry de Bracton, 3 Bracton on the Laws and Customs of England 191, f. 232b (Samuel E. Thorne ed., 1977)). Public nuisance, or common nuisance as it originally was called, was "an infringement of the rights of the Crown." 4 Restatement (Second) Torts § 821B, cmt. a at 87 (1979). Although the earliest cases involved encroachments on the royal domain, public nuisance law evolved to include "the invasion of the rights of the public." Id.


    By the fourteenth century, courts began to apply public nuisance principles to protect rights common to the public, including "roadway safety, air and water pollution, disorderly conduct, and public health * * *." Faulk & Gray, 2007 Mich. St. L. Rev. at 951. Nuisance became a "flexible judicial remedy" that allowed courts to address conflicts between land use and social welfare at a time when government regulations had not yet made their debut. Id.


    It was not until the sixteenth century that the crime of public nuisance largely was transformed into the tort that is familiar in our courts today. Faulk & Gray, 2007 Mich. St. L. Rev. at 952. However, additional parameters were necessary to limit the reach of the new tort. A private party seeking to bring a public nuisance claim was required to demonstrate that he or she had "suffered a `particular' or `special' injury that was not common to the public." Id.; see also 4 Restatement (Second) Torts § 821B, cmt. a at 87-88 (explaining that public nuisance had remained a crime until the sixteenth century, when it first was determined that a private individual, suffering a particularized harm different in kind from that suffered by the public, had the right, in tort, to recover damages for his injury).


    Ultimately, "[a]t common law public nuisance came to cover a large, miscellaneous and diversified group of minor offenses * * *." 4 Restatement (Second) Torts § 821B, cmt. b at 40. Notably, all these offenses involved an "interference with the interests of the community at large—interests that were recognized as rights of the general public entitled to protection." Id.


    Public nuisance as it existed in English common law made its way to Colonial America without change. Faulk & Gray, 2007 Mich. St. L. Rev. at 953. In time, public nuisance became better known as a tort, and its criminal counterpart began to fade away in American jurisprudence. As state legislatures started enacting statutes prohibiting particular conduct and setting forth criminal penalties there was little need for the broad, vague, and anachronistic crime of nuisance. 4 Restatement (Second) Torts § 821B, cmt. c at 88.


    The criminal origins of public nuisance in Rhode Island still can be found in statutes designating certain criminal activities and the places in which they are conducted as "common nuisances." See, e.g., G.L. 1956 § 11-30-2 (defining the unlicensed manufacture or distribution of intoxicating liquor as a common nuisance); § 11-30-12 (defining slaughterhouses, rendering plants, garbage plants, and brick kilns as common nuisances if located within 300 feet of any public park or public hospital); § 11-30-13 (defining the burning of decaying and waste substances as a nuisance); G.L. 1956 § 21-28-4.06 (defining certain facilities used in the distribution of illegal drugs as common nuisances); G.L. 1956 445*445 § 41-5-20 (defining unauthorized boxing matches as common nuisances).


    Public Nuisance in Rhode Island

    As the law of public nuisance began to take hold in Rhode Island, it reflected the principle "so long ago laid down by Lord Holt, that `in every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of the wrong done to him contrary to the said law.'" Aldrich v. Howard, 7 R.I. 199, 213 (1862) (quoting Couch v. Steel, 3 Ellis and Blackburn, (77 Eng. C.L.R.) 411). Some of Rhode Island's earliest cases involved activities designated as "common nuisances" by the General Assembly. Those cases recognized that "`a public nuisance becomes a private one to him who is specially and in some particular way inconvenienced thereby * * *.'" State v. Keeran, 5 R.I. 497, 511 (1858). See also State v. Paul, 5 R.I. 185, 194 (1858) (an action for abatement of a public nuisance may be brought "by those who are specially injured or obstructed").


    In Rhode Island, actions to abate public nuisances originally were brought in the form of an indictment. Keeran, 5 R.I. at 511; Paul, 5 R.I. at 194. Today, the state Attorney General is empowered to bring actions to abate public nuisances. See G.L. 1956 § 42-9-2 (vesting the Attorney General with the power to commence a public nuisance suit) and G.L. 1956 § 10-1-1 (providing that "[w]henever a nuisance is alleged to exist, the attorney general * * * may bring an action in the name of the state * * * to abate the nuisance").


    Public nuisance long has been recognized as a legally viable cause of action in Rhode Island. See J.S. Thornton & Co. v. Smith Grant & Co., 10 R.I. 477, 483 (1873) ("The law [of public nuisance] as declared in the English cases has been recognized by the courts of this country * * *."). Over centuries, this Court has taken careful steps to refine the common law definition of public nuisance to reflect societal changes. We are cognizant of the fact that the common law is a knowable judicial corpus and, as such, serves the important social value of stability; although the common law does evolve, that evolution takes place gradually and incrementally and usually in a direction that can be predicted. See Wheaton v. Peters, 33 U.S. (8 Peters) 591, 671, 8 L.Ed. 1055 (1834) ("[a] great proportion of the rules and maxims which constitute the immense code of the common law, grew into use by gradual adoption"); see also John T. Loughran, Some Reflections on the Role of Judicial Precedent, 22 Fordham L. Rev. 1, 3 (1953) (noting that "[t]he common law has been able to maintain its preeminent place over the centuries because of its stability and its inherent capacity for keeping pace with the demands of an ever-changing and ever-growing civilization"). In so evolving, the law reflects, inter alia, the "felt necessities of the time, the prevalent moral and political theories, [and the] intuitions of public policy * * *." Holmes, The Common Law at 1. Although we recognize the need for such incremental changes,[16] like most courts, we are "particularly 446*446 loath to indulge in the abrupt abandonment of settled principles and distinctions that have been carefully developed over the years." Loughran, 22 Fordham L. Rev. at 8.


    This Court has defined public nuisance as "an unreasonable interference with a right common to the general public." Citizens for Preservation of Waterman Lake v. Davis, 420 A.2d 53, 59 (R.I. 1980). See also Hydro-Manufacturing, Inc. v. Kayser-Roth Corp., 640 A.2d 950, 957 (R.I.1994). "[I]t is behavior that unreasonably interferes with the health, safety, peace, comfort or convenience of the general community." Citizens for Preservation of Waterman Lake, 420 A.2d at 59 (citing Copart Industries, Inc. v. Consolidated Edison Company of New York, 41 N.Y.2d 564, 394 N.Y.S.2d 169, 362 N.E.2d 968, 971 (1977)). Put another way, "public nuisance is an act or omission which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all." Iafrate v. Ramsden, 96 R.I. 216, 222, 190 A.2d 473, 476 (1963) (citing Prosser, Torts, ch. 14, § 71 at 401 (2d ed. 1955)).


    Although this Court previously has not had the opportunity to address all the elements of public nuisance, to the extent that we have addressed this common law cause of action, our definition largely is consistent with that of many other jurisdictions, the Restatement (Second) of Torts, and several scholarly commentators.


    The Restatement (Second) defines public nuisance, in relevant part, as follows:

    "(1) A public nuisance is an unreasonable interference with a right common to the general public.
    "(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:
    "(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience * * *." 4 Restatement (Second) Torts § 821B at 87.

    The Supreme Court of New Jersey, considering facts that were virtually identical to those in this case, elaborated on the necessary elements to maintain a public nuisance action. In that case, the New Jersey court held:

    "First, a public nuisance, by definition, is related to conduct, performed in a location within the actor's control, which has an adverse effect on a common right. Second, a private party who has suffered special injury may seek to recover damages to the extent of the special injury and, by extension, may also seek to abate. Third, a public entity which proceeds against the one in control of the nuisance may only seek to abate, at the expense of the one in control of the nuisance. These time-honored elements of the tort of public nuisance must be our guide in our consideration of whether these complaints have stated such a claim." In re Lead Paint Litigation, 191 N.J. 405, 924 A.2d 484, 499 (2007).

    This Court recognizes three principal elements that are essential to establish public nuisance: (1) an unreasonable interference; (2) with a right common to the general public; (3) by a person or people with control over the instrumentality alleged to have created the nuisance when the damage occurred. After establishing the presence of the three elements of public nuisance, one must then determine whether the defendant caused the public 447*447 nuisance. We will address each element in turn.


    Unreasonable Interference

    Whether an interference with a public right is unreasonable will depend upon the activity in question and the magnitude of the interference it creates. Activities carried out in violation of state laws or local ordinances generally have been considered unreasonable if they interfere with a public right. See, e.g., Pucci v. Algiere, 106 R.I. 411, 426-27, 261 A.2d 1, 10 (1970) (dilapidated structure in violation of local ordinance); Aldrich, 7 R.I. at 213-14 (wooden building in violation of state statute). Activities that do not violate the law but that nonetheless create a substantial and continuing interference with a public right also generally have been considered unreasonable. See, e.g., Wood v. Picillo, 443 A.2d 1244, 1245-48 (R.I.1982) (chemical dump that emitted noxious odors and eventually caught fire, causing multiple explosions and groundwater contamination); Lapre v. Kane, 69 R.I. 504, 507-09, 36 A.2d 92, 94-95 (1944) (swine operation that emitted noxious odors and required that large quantities of "swill" be transported and dumped onto property); Braun v. Iannotti, 54 R.I. 469, 469-70, 175 A. 656, 657 (1934) (greenhouse that continually emitted smoke); Blomen v. N. Barstow Co., 35 R.I. 198, 199-200, 211, 85 A. 924, 924-25 (1913) ("drop or hammer" that caused noise and vibration that could be felt at some distance). The plaintiff bears the burden of showing that a legal activity is unreasonable. Citizens for Preservation of Waterman Lake, 420 A.2d at 59.


    In public nuisance law, as in other areas of the law, what is reasonable vel non is not determined by a simple formula. Cf., e.g., State v. Thomas, 936 A.2d 1278, 1284 (R.I.2007) (in the Fourth Amendment context reasonableness is determined "in light of the facts and circumstances confronting [the officer]") (quoting Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)); State v. Quinlan, 921 A.2d 96, 108 (R.I.2007) (in the search and seizure context "[t]he question of reasonableness is fact specific"); In re Diamond Y., 915 A.2d 1283, 1287 (R.I.2007) (in the parental rights context "[the] reasonableness determination is made on a case-by-case basis").


    Public Right

    A respected legal authority has identified "[t]he interference with a public right [as] the sine qua non of a cause of action for public nuisance." 58 Am.Jur.2d Nuisances § 39 at 598-99 (2002) (emphasis added). This Court also has emphasized the requirement that "the nuisance must affect an interest common to the general public, rather than peculiar to one individual, or several." Iafrate, 96 R.I. at 222, 190 A.2d at 476 (quoting Prosser, Torts, ch. 14, § 72 at 402). See also Hydro-Manufacturing, Inc., 640 A.2d at 957 ("public nuisance is an `unreasonable interference with a right common to the general public'"); Citizens for Preservation of Waterman Lake, 420 A.2d at 59 ("A public nuisance is an unreasonable interference with a right common to the general public * * *."); Lapre, 69 R.I. at 509, 36 A.2d at 95 (an "injury to the public generally" may constitute a public nuisance); Narragansett Real Estate Co. v. Mackenzie, 34 R.I. 103, 123, 82 A. 804, 810-11 (1912) (explaining that a public nuisance would require interference with the public's right to navigate public waterways). This is not to say that public nuisance only is actionable if it occurs on public property. Rather, public nuisance is actionable even when the nuisance itself is present on private property, 448*448 so long as the alleged nuisance affects the rights of the general public. See, e.g., Braun, 54 R.I. at 469-70, 175 A. at 657 (greenhouse on private property could constitute a public nuisance). See also City of Chicago v. American Cyanamid Co., 355 Ill.App.3d 209, 291 Ill.Dec. 116, 823 N.E.2d 126, 132 (2005) ("A public nuisance is actionable even where the nuisance is present on private property.").


    The Restatement (Second) provides further assistance in defining a public right.

    "A public right is one common to all members of the general public. It is collective in nature and not like the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured. Thus the pollution of a stream that merely deprives fifty or a hundred lower riparian owners of the use of the water for purposes connected with their land does not for that reason alone become a public nuisance. If, however, the pollution prevents the use of a public bathing beach or kills the fish in a navigable stream and so deprives all members of the community of the right to fish, it becomes a public nuisance." 4 Restatement (Second) Torts § 821B, cmt. g at 92 (emphasis added).

    Indeed, the Connecticut Supreme Court has explained that "[t]he test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence." Higgins v. Connecticut Light & Power Co., 129 Conn. 606, 30 A.2d 388, 391 (1943) (quoting Nolan v. New Britain, 69 Conn. 668, 38 A. 703, 706 (1897)). As the Restatement (Second) makes clear, a public right is more than an aggregate of private rights by a large number of injured people. See Restatement (Second) Torts § 821B, cmt. g at 92; see also American Cyanamid Co., 291 Ill.Dec. 116, 823 N.E.2d at 131 (a public right is not "an assortment of claimed private individual rights"). Rather, a public right is the right to a public good, such as "an indivisible resource shared by the public at large, like air, water, or public rights of way." American Cyanamid Co., 291 Ill.Dec. 116, 823 N.E.2d at 131. Unlike an interference with a public resource,

    "[t]he manufacture and distribution of products rarely, if ever, causes a violation of a public right as that term has been understood in the law of public nuisance. Products generally are purchased and used by individual consumers, and any harm they cause—even if the use of the product is widespread and the manufacturer's or distributor's conduct is unreasonable—is not an actionable violation of a public right. * * * The sheer number of violations does not transform the harm from individual injury to communal injury." Gifford, 71 U. Cin. L. Rev. at 817.

    Professor Donald G. Gifford of the University of Maryland School of Law explained the essential nature of a public right by contrasting it with a public interest:

    "That which might benefit (or harm) `the public interest' is a far broader category than that which actually violates `a public right.' For example, while promoting the economy may be in the public interest, there is no public right to a certain standard of living (or even a private right to hold a job). Similarly, while it is in the public interest to promote the health and well-being of citizens generally, there is no common law public right to a certain standard of medical care or housing." Gifford, 71 U. Cin. L. Rev. at 815.

    449*449 iii


    As an additional prerequisite to the imposition of liability for public nuisance, a defendant must have control over the instrumentality causing the alleged nuisance at the time the damage occurs. Put simply, "[o]ne who controls a nuisance is liable for damages caused by that nuisance." Friends of the Sakonnet v. Dutra, 749 F.Supp. 381, 395 (D.R.I.1990) (Dutra II) (applying Rhode Island law); see also Citizens for Preservation of Waterman Lake, 420 A.2d at 59 (declining to impose liability for public nuisance when plaintiff "failed to produce any evidence directly bearing on the amount of noise created by trucks under [defendant's] control") (emphasis added).


    Thus, liability in a public nuisance action "turns on whether the defendants were in control over the instrumentality alleged to constitute the nuisance, either through ownership or otherwise." City of Manchester v. National Gypsum Co., 637 F.Supp. 646, 656 (D.R.I.1986) (applying New Hampshire law). Importantly, the defendant must have had control over the nuisance-causing instrumentality at the time that the damage occurred. Friends of the Sakonnet v. Dutra, 738 F.Supp. 623, 633-34 (D.R.I.1990) (Dutra I) (citing National Gypsum Co., 637 F.Supp. at 656).


    Indeed, control at the time the damage occurs is critical in public nuisance cases, especially because the principal remedy for the harm caused by the nuisance is abatement. See § 10-1-1 (authorizing the Attorney General to bring an action to abate a public nuisance); State ex rel. Dresser Industries, Inc. v. Ruddy, 592 S.W.2d 789, 793 (Mo.1980) ("Injunctions or abatements have been the traditional remedies where the state brings suit for a public nuisance * * *."); see also National Gypsum Co., 637 F.Supp. at 656 ("The defendants, after the time of manufacture and sale, no longer had the power to abate the nuisance. Therefore, a basic element of the tort of nuisance is absent, and the plaintiff cannot succeed on this theory of relief."); Town of Hooksett School District v. W.R. Grace & Co., 617 F.Supp. 126, 133 (D.N.H.1984) (recognizing that the defendant manufacturer was unable to "abate or relieve the complaint of nuisance, a hallmark of the cases listed in New Hampshire," and, therefore, lacked the element of control necessary to be held liable for public nuisance).


    The party in control of the instrumentality causing the alleged nuisance is best positioned to abate it and, therefore, is legally responsible. Gifford, 71 U. Cin. L. Rev. at 820 ("[L]iability for nuisance—both public and private—is premised not on the creation of a nuisance but rather on the defendant's current control of the instrumentality causing the nuisance."); Mark P. Gagliardi, Note, Stirring up the Debate in Rhode Island: Should Lead Paint Manufacturers Be Held Liable for the Harm Caused by Lead Paint?, 7 Roger Williams U.L. Rev. 341, 376 (2002) ("[T]he [s]tate fails to take into account that there must be some control over the instrumentality alleged to have created the nuisance.").


    Recently, the New Jersey Supreme Court similarly held that control at the time the damage occurs is a time-honored element of public nuisance. In re Lead Paint Litigation, 924 A.2d at 499. In ruling that the manufacturers of lead pigment could not be held liable for nuisance under New Jersey law, the high court of that state emphasized that "a public nuisance, by definition, is related to conduct, performed in a location within the actor's control * * *." Id.


    The New Jersey decision was not without dissent, however. The Chief Justice 450*450 concluded that control over the nuisance is not a necessary element at common law. In re Lead Paint Litigation, 924 A.2d at 510 (Zazzali, C.J., dissenting). He agreed with other courts that have said it is enough that the defendants contributed to the creation of the unreasonable interference and it is immaterial whether the defendants continued to exercise control over the nuisance. Id.


    As support, the Chief Justice cited the decision of the United States District Court for the District of Rhode Island in Dutra I, 738 F.Supp. at 633, for the proposition that Rhode Island has not yet barred recovery of nuisance damages if the defendant no longer controls the nuisance. In re Lead Paint Litigation, 924 A.2d at 510. However, apparently the Chief Justice did not read far enough; the fact is that the federal District Court continued as follows: "The paramount question is whether the defendant was in control of the instrumentality alleged to have created the nuisance when the damage occurred." Dutra I, 738 F.Supp. at 633-34. (Emphasis added.) In other words, although defendants need not control the nuisance at all times, they must have, minimally, controlled the nuisance at the time of the damage.


    Lending further credence to this principle, the federal District Court clarified its Dutra I holding later that same year. See Dutra II, 749 F.Supp. at 395. The court, again applying Rhode Island law, stated that "liability * * * under the law of nuisance depends primarily on the question of control and duty * * *." Id. "One who controls a nuisance is liable for damages caused by that nuisance." Id.


    Other courts and commentators likewise have emphasized the element of control. A leading treatise concerning products liability law states that "a product which has caused injury cannot be classified as a nuisance to hold liable the manufacturer or seller for the product's injurious effects * * *." 2 American Law of Products Liability § 27:6 at 11 (3d 2006). Indeed, "a product manufacturer who builds and sells the product and does not control the enterprise in which the product is used is not in the situation of one who creates a nuisance * * *." Id.; see also City of Bloomington, Indiana v. Westinghouse Electric Corp., 891 F.2d 611, 614 (7th Cir.1989) (noting the absence of cases "holding manufacturers liable for public or private nuisance claims arising from the use of their product subsequent to the point of sale"); Gifford, 71 U. Cin. L. Rev. at 820 ("The essence of public nuisance law * * * is ending the harmful conduct. This is impossible for the manufacturer or distributor who has relinquished possession by selling or otherwise distributing the product."); Victor E. Schwartz & Phil Goldberg, The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort, 45 Washburn L.J. 541, 568 (2006) ("[F]urnishing a product or instrumentality—whether it be chemicals, asbestos, guns, lead paint, or other products—is not the same as having control over that instrumentality.").



    The party alleging the existence of a public nuisance not only must demonstrate the existence of the nuisance, but also must demonstrate "that injury has been caused by the nuisance complained of." Citizens for Preservation of Waterman Lake, 420 A.2d at 59 (citing McClellan v. Thompson, 114 R.I. 334, 344, 333 A.2d 424, 429 (1975)). Causation is a basic requirement in any public nuisance action; such a requirement is consistent with the law of torts generally. See Contois v. Town of West Warwick, 865 A.2d 1019, 451*451 1023 (R.I.2004) (discussing the causation requirement in negligence actions); Clift v. Vose Hardware, Inc., 848 A.2d 1130, 1132 (R.I.2004) (discussing the causation requirement in the products liability context); Salk v. Alpine Ski Shop, Inc., 115 R.I. 309, 314-15, 342 A.2d 622, 626 (1975) (concluding that, even under strict liability, a plaintiff must show "a causal connection between the defect and the injury").


    A defendant will be held liable in public nuisance only if the conduct complained of actually caused an interference with a public right. See Wood, 443 A.2d at 1248 ("The testimony * * * clearly establishes that [the] defendants' dumping operations have already caused substantial injury * * *."); Rose v. Standard Oil Company of New York, Inc., 56 R.I. 272, 279, 185 A. 251, 254 (1936) (discussing "the chain of causation"); Sweet v. Conley, 20 R.I. 381, 385, 39 A. 326, 328 (1898) (liability for a public nuisance is appropriate when defendant "wrongfully and illegally cause[d] the surface water of a street to collect and remain in front of one's premises"). Although it is true that public nuisance is characterized by an unreasonable interference with a public right, basic fairness dictates that a defendant must have caused the interference to be held liable for its abatement. See Citizens for Preservation of Waterman Lake, 420 A.2d at 60 (holding that the defendant was not liable when "there [was] virtually no evidence establishing that such odors were caused by any actions on the part of [the] defendant").


    In addition to proving that a defendant is the cause-in-fact of an injury, a plaintiff must demonstrate proximate causation. See DiPetrillo v. The Dow Chemical Co., 729 A.2d 677, 692-93 (R.I. 1999) (affirming that the jury be instructed on both "but for" and proximate causation in the products liability context); Moretti v. C.S. Realty Co., 78 R.I. 341, 353, 82 A.2d 608, 615 (1951) (instructing on proximate cause in nuisance case). Proximate cause is a more exacting standard than simple "but for" causation. Tavares v. Aramark Corp., 841 A.2d 1124, 1128 (R.I.2004). A leading treatise speaks as follows about proximate cause:

    "As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy." W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 41 at 264 (5th ed. 1984).

    We agree with the Illinois Supreme Court that "[t]he proper inquiry regarding legal cause involves an assessment of foreseeability, in which we ask whether the injury is of a type that a reasonable person would see as a likely result of his conduct." City of Chicago v. Beretta U.S.A. Corp., 213 Ill.2d 351, 290 Ill.Dec. 525, 821 N.E.2d 1099, 1127 (2004) (citing Lee v. Chicago Transit Authority, 152 Ill.2d 432, 178 Ill. Dec. 699, 605 N.E.2d 493, 503 (1992)).


    Accordingly, "[l]iability cannot be predicated on a prior and remote cause which merely furnishes the condition or occasion for an injury resulting from an intervening unrelated and efficient cause, even though the injury would not have resulted but for such a condition or occasion * * *." Clements v. Tashjoin, 92 R.I. 308, 314, 168 A.2d 472, 475 (1961) (citing 65 C.J.S. Negligence § 111d at 693). A plaintiff "need not exclude every other possible cause," but a plaintiff must demonstrate proximate cause by "reasonable inferences drawn from the facts in evidence." Skaling v. Aetna Insurance Co., 742 A.2d 282, 288 (R.I.1999) (quoting Cartier v. State, 420 A.2d 843, 848 (R.I.1980)).


    Another Attribute of Public Nuisance

    In concluding this discussion of the elements necessary to establish a public nuisance, we also believe that it is advisable to mention the following.


    A common feature of public nuisance is the occurrence of a dangerous condition at a specific location. This Court has recognized that the existence of a nuisance depends in large part on its location, and, to date, the actions for nuisance in this jurisdiction have been related to land. See, e.g., Wood, 443 A.2d at 1245-46 (dump site on the defendant's property). In fact, in O'Reilly v. Perkins, this Court sustained the trial court's dismissal of the plaintiffs' complaint in which they had failed to identify the location of their property in relation to the defendant's proposed brewery. O'Reilly v. Perkins, 22 R.I. 364, 364-65, 48 A. 6, 6 (1901). See also State v. Beardsley, 108 Iowa 396, 79 N.W. 138, 141 (Iowa 1899) ("[A] nuisance is the unlawful use of one's own property, working an injury to a right of another or of the public, and producing such inconvenience, discomfort, or hurt that the law will presume a consequent damage."); In re Lead Paint Litigation, 924 A.2d at 495 ("[P]ublic nuisance has historically been tied to conduct on one's own land or property as it affects the rights of the general public.").


    The United States Supreme Court has remarked that "the question [of] whether * * * a particular thing is a nuisance, is to be determined, not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality." Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 71 L.Ed. 303 (1926) (citing Sturgis v. Bridgeman, L.R. 11 Ch. 852, 865). Professor William L. Prosser, the highly respected authority on the law of torts, remarked that "[i]f `nuisance' is to have any meaning at all, it is necessary to dismiss a considerable number of cases which have applied the term to matters not connected either with land or with any public right, as mere aberration * * *." Prosser and Keeton on the Law of Torts, § 86 at 618; see also City of San Diego v. U.S. Gypsum, 30 Cal.App.4th 575, 35 Cal.Rptr.2d 876, 883 (1995).


    Unlike private nuisance, public nuisance does not necessarily involve an interference with a particular individual's use and enjoyment of his or her land. In re Lead Paint Litigation, 924 A.2d at 495-96 (citing 4 Restatement (Second) Torts § 821B, cmt. h at 93). Rather, public nuisance typically arises on a defendant's land and interferes with a public right. Id. at 496 (citing 4 Restatement (Second) Torts § 821B, cmt. g at 92). For example, a nuisance may originate on a defendant's land as in the case of a mosquito pond, or an activity conducted on a defendant's land may interfere with a right of the general public, as in a stream-polluting business. Id. at 495.


    Whether the Presence of Lead Paint Constitutes a Public Nuisance

    After thoroughly reviewing the complaint filed by the state in this case, we are of the opinion that the trial justice erred in denying defendants' motion to dismiss under Rule 12(b)(6) of the Superior Court Rules of Civil Procedure.


    As the foregoing analysis demonstrates, under Rhode Island law, a complaint for public nuisance minimally must allege: (1) an unreasonable interference; (2) with a right common to the general public; (3) by a person or people with control over the instrumentality alleged to have created the 453*453 nuisance when the damage occurred; and (4) causation.


    Even considering the allegations of fact as set forth in the complaint, we cannot ascertain allegations in the complaint that support each of these elements. The state's complaint alleges simply that "[d]efendants created an environmental hazard that continues and will continue to unreasonably interfere with the health, safety, peace, comfort or convenience of the residents of the [s]tate, thereby constituting a public nuisance." Absent from the state's complaint is any allegation that defendants have interfered with a public right as that term long has been understood in the law of public nuisance. Equally problematic is the absence of any allegation that defendants had control over the lead pigment at the time it caused harm to children.


    At the motion to dismiss stage, defendants argued that "the [s]tate has not asserted a public nuisance claim because a public right has not been infringed and because the defendants' lead did not cause the alleged harm while within their control as product manufacturers or promoters." The defendants also argued that the state's complaint did not seek to enjoin those people who were responsible for maintaining the public nuisance. For its part, the state argued that the public's right to be free from the hazards of unabated lead had been infringed and that defendants were responsible for the presence of lead in public and private properties throughout Rhode Island. After considering both these arguments, the trial justice denied defendants' motion to dismiss, concluding that the state had sufficiently averred that defendants' conduct "unreasonably interfered with the health, safety, peace, comfort or convenience of the general community." We disagree.


    A necessary element of public nuisance is an interference with a public right — those indivisible resources shared by the public at large, such as air, water, or public rights of way. The interference must deprive all members of the community of a right to some resource to which they otherwise are entitled. See 4 Restatement (Second) Torts § 821B, cmt. g at 92. The Restatement (Second) provides much guidance in ascertaining the fine distinction between a public right and an aggregation of private rights. "Conduct does not become a public nuisance merely because it interferes with the use and enjoyment of land by a large number of persons." Id. See also City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110, 116 (Mo. 2007) (quoting State ex inf. Ashcroft v. Kansas City Firefighters Local No. 42, 672 S.W.2d 99, 114-15 (Mo.Ct.App.1984)); In re Lead Paint Litigation, 924 A.2d at 501.


    Although the state asserts that the public's right to be free from the hazards of unabated lead had been infringed, this contention falls far short of alleging an interference with a public right as that term traditionally has been understood in the law of public nuisance. The state's allegation that defendants have interfered with the "health, safety, peace, comfort or convenience of the residents of the [s]tate" standing alone does not constitute an allegation of interference with a public right. See Beretta U.S.A. Corp., 290 Ill.Dec. 525, 821 N.E.2d at 1114. The term public right is reserved more appropriately for those indivisible resources shared by the public at large, such as air, water, or public rights of way. See American Cyanamid Co., 291 Ill.Dec. 116, 823 N.E.2d at 131, 139 (persuaded by the defendants' argument to this effect). Expanding the definition of public right based on the allegations in the complaint would be antithetical to the common law and would lead to a widespread expansion of public nuisance law that never was intended, as we discuss infra. In 454*454 declining to adopt such a widespread expansion of the law, we are mindful of the words of Edmund Burke that "bad laws are the worst sort of tyranny." 1 Edmund Burke, The Works of Edmund Burke: With a Memoir 318 (1860).


    The right of an individual child not to be poisoned by lead paint is strikingly similar to other examples of nonpublic rights cited by courts, the Restatement (Second), and several leading commentators. See Beretta U.S.A. Corp., 290 Ill.Dec. 525, 821 N.E.2d at 1114 (concluding that there is no public right to be "free from unreasonable jeopardy to health, welfare, and safety, and from unreasonable threats of danger to person and property, caused by the presence of illegal weapons in the city of Chicago"); 4 Restatement (Second) Torts § 821B, cmt. g at 92 (the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured is not a public right); Gifford, 71 U. Cin. L. Rev. at 815 (there is no common law public right to a certain standard of living, to a certain standard of medical care, or to a certain standard of housing).

    In the words of one commentator: "Despite the tragic nature of the child's illness, the exposure to lead-based paint usually occurs within the most private and intimate of surroundings, his or her own home. Injuries occurring in this context do not resemble the rights traditionally understood as public rights for public nuisance purposes — obstruction of highways and waterways, or pollution of air or navigable streams." Gifford, 71 U. Cin. L. Rev. at 818.

    The enormous leap that the state urges us to take is wholly inconsistent with the widely recognized principle that the evolution of the common law should occur gradually, predictably, and incrementally. Were we to hold otherwise, we would change the meaning of public right to encompass all behavior that causes a widespread interference with the private rights of numerous individuals.


    The Illinois Supreme Court recently hypothesized on the effect of a broader recognition of public right. In Beretta, the Illinois Supreme Court considered whether there was a public right to be "free from unreasonable jeopardy to health, welfare, and safety, and from unreasonable threats of danger to person and property, caused by the presence of illegal weapons in the city of Chicago." Beretta U.S.A. Corp., 290 Ill.Dec. 525, 821 N.E.2d at 1114. In concluding that there was not, the court acknowledged the far-reaching effects of a decision otherwise. Id. 290 Ill.Dec. 525, 821 N.E.2d at 1116. The court speculated that

    "[i]f there is public right to be free from the threat that others may use a lawful product to break the law, that right would include the right to drive upon the highways, free from the risk of injury posed by drunk drivers. This public right to safe passage on the highways would provide the basis for public nuisance claims against brewers and distillers, distributing companies, and proprietors of bars, taverns, liquor stores, and restaurants with liquor licenses, all of whom could be said to contribute to an interference with the public right." Id.

    In taking the analogy a step further, the court considered the effect of other product misuse, stating:

    "Similarly, cell phones, DVD players, and other lawful products may be misused by drivers, creating a risk of harm to others. In an increasing number of jurisdictions, state legislatures have acted to ban the use of these otherwise legal products while driving. A public right to be free from the threat that other drivers may defy these laws would permit nuisance liability to be imposed 455*455 on an endless list of manufacturers, distributors, and retailers of manufactured products that are intended to be, or are likely to be, used by drivers, distracting them and causing injury to others." Id.

    Like the Beretta court, we see no reason to depart from the long-standing principle that a public right is a right of the public to shared resources such as air, water, or public rights of way.


    Even had the state adequately alleged an interference with a right common to the general public, which we conclude it did not, the state's complaint also fails to allege any facts that would support a conclusion that defendants were in control of the lead pigment at the time it harmed Rhode Island's children.


    The state filed suit against defendants in their capacity "either as the manufacturer of * * * lead pigment * * * or as the successors in interest to such manufacturers" for "the cumulative presence of lead pigment in paints and coatings in or on buildings throughout the [s]tate of Rhode Island." For the alleged public nuisance to be actionable, the state would have had to assert that defendants not only manufactured the lead pigment but also controlled that pigment at the time it caused injury to children in Rhode Island — and there is no allegation of such control.


    The New Jersey Supreme Court applied these same elements to the lead paint litigation in that jurisdiction and likewise held that public nuisance was an improper cause of action. The court emphasized that were it "to permit these complaints to proceed, [it] would stretch the concept of public nuisance far beyond recognition and would create a new and entirely unbounded tort antithetical to the meaning and inherent theoretical limitations of the tort of public nuisance." In re Lead Paint Litigation, 924 A.2d at 494. We agree.


    We conclude, therefore, that there was no set of facts alleged in the state's complaint that, even if proven, could have demonstrated that defendants' conduct, however unreasonable, interfered with a public right or that defendants had control over the product causing the alleged nuisance at the time children were injured. Accordingly, we need not decide whether defendants' conduct was unreasonable or whether defendants caused an injury to children in Rhode Island.


    In denying defendants' motion to dismiss, the highly respected trial justice, however well intentioned, departed from the traditional requirements of common law public nuisance. The Restatement (Second) warns against any such departure from the common law, noting that "[i]f a defendant's conduct in interfering with a public right does not come within one of the traditional categories of the common law crime of public nuisance or is not prohibited by a legislative act, the court is acting without an established and recognized standard." 4 Restatement (Second) Torts, § 821B, cmt. e at 90. We pause, however, to acknowledge the complexity of the issues presented in this case[17] and to note that, in reversing the judgment of the Superior Court, we mean no disrespect to the distinguished trial justice, the jury, the 456*456 members of our judiciary, the trial lawyers, or the Office of the Attorney General — all of whom labored for years over this formidable and problematic case.


    Finally, our decision that defendants' conduct does not constitute a public nuisance as that term has for centuries been understood in Anglo-American law does not leave Rhode Islanders without a remedy. For example, an injunction requiring abatement may be sought against landlords who allow lead paint on their property to decay. See, e.g., Pine v. Kalian, 723 A.2d 804, 804-05 (R.I.1998) (mem.) (upholding the Superior Court's grant of an injunction requiring that two landlords abate the lead hazard in their property). In addition, the LPPA provides for penalties and fines against those property owners who violate its rules or procedures. Sections 23-24.6-23 and 23-24.6-27. The LHMA further authorizes a private cause of action to be brought on behalf of households with at-risk occupants to seek injunctive relief to compel property owners to comply with the act. G.L. 1956 § 42-128.1-10.


    Apart from these actions, the proper means of commencing a lawsuit against a manufacturer of lead pigments for the sale of an unsafe product is a products liability action. The law of public nuisance never before has been applied to products, however harmful. Courts in other states consistently have rejected product-based public nuisance suits against lead pigment manufacturers, expressing a concern that allowing such a lawsuit would circumvent the basic requirements of products liability law. See American Cyanamid Co., 291 Ill.Dec. 116, 823 N.E.2d at 134; Benjamin Moore & Co., 226 S.W.3d at 116; In re Lead Paint Litigation, 924 A.2d at 503-05.


    Public nuisance focuses on the abatement of annoying or bothersome activities. Products liability law, on the other hand, has its own well-defined structure, which is designed specifically to hold manufacturers liable for harmful products that the manufacturers have caused to enter the stream of commerce.


    Undoubtedly, public nuisance and products liability are two distinct causes of action, each with rational boundaries that are not intended to overlap. In 1971, this Court adopted the doctrine of strict liability for products as set forth in the Restatement (Second) Torts. See Ritter v. Narragansett Electric Co., 109 R.I. 176, 192, 283 A.2d 255, 263 (1971) ("It is our conclusion, then, that the rule stated in § 402A of the Restatement (Second) of Torts may be invoked in cases of products liability in appropriate cases."). We require two elements: "(1) `the seller is engaged in the business of selling such a product,' and (2) the product `is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.'" Olshansky v. Rehrig International, 872 A.2d 282, 287 (R.I.2005) (quoting Ritter, 109 R.I. at 188, 283 A.2d at 261). These two elements are crucial for the imposition of liability in a products liability suit, yet neither element is a requirement of public nuisance.


    A product-based public nuisance cause of action bears a close resemblance to a products liability action, yet it is not limited by the strict requirements that surround a products liability action. Courts presented with product-based public nuisance claims have expressed their concern over the ease with which a plaintiff could bring what properly would be characterized as a products liability suit under the guise of product-based public nuisance. The New Jersey Supreme Court, in rejecting the public nuisance claims against lead pigment manufacturers wrote that "[w]e cannot help but agree with the observation 457*457 that, were we to find a cause of action here, `nuisance law would become a monster that would devour in one gulp the entire law of tort.'" In re Lead Paint Litigation, 924 A.2d at 505 (quoting Camden County Board of Chosen Freeholders v. Beretta, U.S.A. Corp., 273 F.3d 536, 540 (3d Cir.2001)); see also U.S. Gypsum, 35 Cal.Rptr.2d at 883 ("[N]uisance cases `universally' concern the use or condition of property, not products.") (quoting Detroit Board of Education v. Celotex Corp., 196 Mich.App. 694, 493 N.W.2d 513, 521 (1992)).


    Other courts have rendered similar rulings. In Benjamin Moore & Co., the Missouri Supreme Court held that the city's public nuisance claim with respect to lead paint in buildings must be dismissed because the city could not identify the specific products used in the buildings. Benjamin Moore & Co., 226 S.W.3d at 113, 116. Likewise, the Illinois Appellate Court rejected Chicago's assertion that public nuisance claims do not require identification of the product as being that of the defendant. American Cyanamid Co., 291 Ill.Dec. 116, 823 N.E.2d at 139-40. These cases demonstrate that even if a lawsuit is characterized as a public nuisance cause of action, the suit nonetheless sounds in products liability if it is against a manufacturer based on harm caused by its products. Regardless of the label placed on the cause of action, the elements of products liability still must be met to properly maintain such a product-based proceeding.


    It is essential that these two causes of action remain just that — two separate and distinct causes of action. Addressing this distinction and the danger of a product-based public nuisance suit against gun manufacturers, wholesalers, and retailers, a New York appellate court explained that

    "giving a green light to a common-law public nuisance cause of action today will * * * likely open the courthouse doors to a flood of limitless, similar theories of public nuisance, not only against these defendants, but also against a wide and varied array of other commercial and manufacturing enterprises and activities." People v. Sturm, Ruger & Co., Inc., 309 A.D.2d 91, 761 N.Y.S.2d 192, 196 (N.Y.App.Div.2003).
    "All a creative mind would need to do is construct a scenario describing a known or perceived harm of a sort that can somehow be said to relate back to the way a company or an industry makes, markets and/or sells its non-defective, lawful product or service, and a public nuisance claim would be conceived and a lawsuit born." Id.

    The Rhode Island General Assembly has recognized that lead paint has created a public health hazard and, pursuant to its power to legislate, has adopted several statutory schemes to address this problem. Collectively, the LPPA and the LHMA reflect the General Assembly's chosen means of responding to the state's childhood lead poisoning problem. The legislative body made clear policy decisions about how to reduce lead hazards in Rhode Island homes, buildings, and other dwellings and who should be responsible. Importantly, the General Assembly has recognized that landlords, who are in control of the lead pigment at the time it becomes hazardous, are responsible for maintaining their premises and ensuring that the premises are lead-safe. Quite tellingly, the General Assembly's chosen means of remedying childhood lead poisoning in Rhode Island did not include an authorization of an action for public nuisance against the manufacturers of lead pigments, despite the fact that this action seeking to impose liability on various lead pigment manufacturers was well under 458*458 way at the time the LHMA was enacted. Indeed, even the trial justice recognized the absence of legislation governing defendants' actions. He found the LPPA inapplicable because it does not "address in any fashion the actions of these defendants" and because "[t]he statutes and regulations do not authorize the existence of the claimed public nuisance." By focusing on the party in control of the instrumentality at the time the harm occurs, the General Assembly's enactments are wholly consistent with the law of public nuisance in this state and all other jurisdictions.


    For the foregoing reasons, we conclude that the trial justice erred in denying defendants' motion to dismiss.

    Track II

    Compensatory Damages

    Also before this Court is the state's cross-appeal on the issue of compensatory damages. The state argues that it was improper for the trial justice to dismiss the state's claim for damages in excess of $26 million. The state also contends that it was improper for the trial justice to foreclose it from presenting evidence to the jury on the amount of money expended on publicly financed programs, which, the state alleges, was directly caused by the public nuisance from lead in paint. Because we conclude that the tort of public nuisance was not the proper cause of action to proceed against defendant lead pigment manufacturers, we need not address the state's argument with respect to compensatory damages.

    Track III

    The State's Appeal Concerning ARCO's Successorship Liability

    Justice Suttell, for the Court.


    The state has appealed from the trial justice's grant of a judgment as a matter of law under Super.R.Civ.P. 50 in favor of ARCO on the ground that ARCO was not the legal successor to the Anaconda Lead Products Company (ALPC), a manufacturer of white lead carbonate between 1920 and 1936. ARCO also has filed a conditional cross-appeal if this Court reverses the trial justice's decision.


    In its complaint, the state alleged that ARCO was "the successor-in-interest to International Smelting and Refining Company [IS & R] and [ALPC]." At trial, the state and ARCO stipulated that ALPC produced lead pigment at an East Chicago, Indiana, plant from 1920 to 1936, when the company was dissolved and its assets and properties were transferred to its parent, IS & R. IS & R produced lead pigment at the same East Chicago plant from 1936 until 1946. In 1973, IS & R merged into its parent company, The Anaconda Company, and in 1977 ARCO acquired all shares of stock in The Anaconda Company. On December 31, 1981, The Anaconda Company was merged into ARCO.


    After granting ARCO's Rule 50 motion, the trial justice instructed the jury that ARCO was not liable for the acts or omissions of ALPC. The jury thus considered ARCO's potential liability only with respect to its successorship to IS & R for the manufacturing and promotion of lead pigment from 1936 to 1946. The jury eventually returned a verdict in favor of ARCO, finding that ARCO had not "caused or substantially contributed to the creation of the public nuisance."


    The state now seeks a new trial against ARCO, asserting that the trial justice misapplied the applicable Rhode Island law on successor liability, as set forth in the seminal case of H.J. Baker & Bro., Inc. v. Orgonics, Inc., 554 A.2d 196 (R.I.1989). In addition, the state urges us to adopt the 459*459 "de facto merger" exception to the general rule that "a company that purchases the assets of another is not liable for the debts of the transferor company." Id. at 205 (citing Cranston Dressed Meat Co. v. Packers Outlet Co., 57 R.I. 345, 348, 190 A. 29, 31 (1937)). Because we conclude in Track I of this opinion that the trial justice erred in denying defendants' motion to dismiss under Super.R.Civ.P. 12(b)(6), we need not address either the state's arguments about ARCO's liability or ARCO's conditional cross-appeal.

    Track IV

    The Trial Court's Contempt Findings


    Facts and Travel

    Justice Flaherty, for the Court.


    In this heated and contentious legal dispute, the trial justice continually was challenged to bring order inside and outside of the courtroom in an effort to maintain a setting that would ensure a fair trial to both sides. An example of the tense litigation atmosphere emerged shortly before jury selection, when the trial justice granted defendant Millennium's motion to compel discovery about a settlement agreement negotiated with a former defendant, DuPont, pursuant to which DuPont was dismissed from the case with prejudice. Reporting on this agreement, The Providence Journal quoted Patrick Lynch, the Rhode Island Attorney General, as saying, "Du Pont stepped up to the plate. It was willing to do something about the children." Then, referring to counsel for the other defendants, the Attorney General was reported to have said: "This discovery is just part of the despicable legal moves the company lawyers are willing to make to slow down justice."


    Understandably concerned about this type of extrajudicial trial publicity, the trial justice conducted an in camera hearing on October 21, 2005. At that hearing, defendants Millennium and Sherwin-Williams asked the trial justice to direct the Attorney General to refrain from making public statements that attacked the credibility of defendants or their counsel,[18] citing Article V, Rule 3.6 of the Supreme Court Rules of Professional Conduct.[19] 460*460 During the hearing, counsel for the state reported to the trial justice that he had spoken with the Attorney General and that the Attorney General "clearly understood the importance of not getting into subjective comments" as the case moved forward. The trial justice then issued a sealed oral order that required that the Attorney General conform his public statements to Rule 3.6. This was followed by a sealed written order on November 3, 2005, which provided in relevant part:

    "1. The Court directs the Attorney General to fully comply with Rule 3.6 of the Rhode Island Rules of Professional Conduct with respect to any and all statements the Attorney General may make, release or cause to be released to the public, individually or through his office, which pertain in whole or in part to this case, any of the parties to this case, or the subject-matter of this case."

    The Attorney General did not object to the validity of this order at that time nor did he seek any clarification with respect to its language.


    The Trial Court's November 2005 Contempt Finding

    The trial progressed, but unfortunately that did nothing to cool the heated emotions surrounding the case. On November 16, 2005, the Attorney General left the courtroom after a day of trial, and he responded to a variety of questions from the press. A Providence Journal article later characterized the Attorney General's statements:

    "Following the ruling, Campbell [a spokesperson for defendants] had no comment. But a beaming Lynch stepped outside the courtroom and praised [trial justice Michael A.] Silverstein for the way he has guided the case during the last six years. He also lambasted the defense.
    "`We want to continue our search for justice before this jury and not give in to those who would spin and twist the facts,' Lynch said."

    461*461 Alarmed by these reported comments, the trial justice called a sua sponte hearing the next day to address the Attorney General's remark, and he asked the parties to file any papers that they thought were appropriate. Millennium then moved for an order to declare the Attorney General in civil contempt of the order of November 3, 2005, and it also asked the court to dismiss the action as a sanction; defendants ARCO, NL, and Sherwin-Williams joined Millennium's motion. The defendants argued that the Attorney General's public comments were part of a pattern of public attacks upon the character and credibility of defendants. The Attorney General countered that his statements were justified and that they did not violate the Supreme Court Rules of Professional Conduct.


    At a contempt hearing conducted on November 18, 2005, the Attorney General personally addressed the court and he explained his comments. It is noteworthy that at this time, the Attorney General again raised no objection to the November order; rather, he conceded its propriety: "So, that your order in response to the issuance of me commenting or excusing that word [`despicable'] is more than appropriate, and I recognize that fully." Explaining his comments, the Attorney General said that reporters asked him: "What do you have to say about [defendants'] claims that your counsel have flagrantly disregarded the law, have violated ethical rules intentionally?" The Attorney General told the court that he declined to respond to these statements. However, the reporters pressed, asking him, "Well, what do you have to say about them saying that your team has continuously and intentionally * * * flagrantly disregarded the rules, particularly the ethical rules of conduct?" The Attorney General said that he finally responded by saying simply: "What is printed in the paper that I will not respond to is the spinning and twisting of evidence and comments like that you just attached to those people."


    On November 28, 2005, after considering the written arguments submitted by the parties and the Attorney General's comments, the trial justice issued a bench decision, finding the Attorney General in civil contempt of the court's order of November 3, 2005.[20] Although he did not elaborate on his findings, the trial justice noted that the Attorney General had been goaded by reporters and that he did not willfully violate the court's order. The trial justice's contempt finding was memorialized in an order on December 6, 2005,[21] which directed the Attorney General to pay the clerk of the Providence County Superior Court $5,000 as a sanction.


    The Trial Court's May 2006 Contempt Finding

    In his December 6, 2005 order, the trial justice did more than find the Attorney General in contempt — he amended his original November order by adding paragraph 1.1, which said: "The Court directs the Attorney General to cease and desist from making any subjective characterizations of the defendants or any of them or of their agents, servants or attorneys." 462*462 Soon after, on February 22, 2006,[22] the trial justice again cautioned the parties: "I don't want any discussion with this jury by anyone with respect to what motivated them to reach the decision that they did or anything else about the case."


    Nonetheless, further problems arose on February 22, 2006. Apparently flushed with victory, just after the jury returned a verdict on liability in favor of the state, the Attorney General posted a statement on his official website that thanked the jurors "for their service, their attention to the facts and evidence that led them to this moment, and their courage in rendering a historic verdict that, ultimately, will help make Rhode Island a safer and better place to live." Matters were complicated further when, on the following day, The Boston Globe published this quote from the Attorney General: "The companies failed to step up and clean up the problem they created * * *. The legal process has held them accountable and said you can't duck and run.


    Because of the Attorney General's "duck and run" comment and the website posting, defendants Millennium, Sherwin-Williams, and NL asked the trial justice again to find the Attorney General in civil contempt. Specifically, defendants asserted that labeling them as "duck and run" defendants violated the November order, as amended on December 6, 2005. They also argued that the Attorney General's praise of the jurors, who had not been discharged and had yet to deliberate on the punitive damage and remediation-plan issues, was an improper attempt to influence the panel. This, they alleged, violated Article V, Rule 3.5 of the Supreme Court Rules of Professional Conduct,[23] as well as the trial court's bench order of February 22, 2006. The defendants asserted that a second monetary sanction would be no more effective than the first, and that the appropriate sanction was dismissal of the punitive-damage claim. In response, the Attorney General continued to deny any impropriety; he asserted that his "duck and run" comment did not violate Rule 3.6 and that his comments to the jurors "were not designed to say anything" to them.


    At a hearing on May 1, 2006, the trial justice again held the Attorney General in civil contempt for violating the Rules of Professional Conduct and the Superior Court's prior orders, noting that "[t]his Court has no hesitancy in holding as I now do that the Attorney General is in further contempt." The trial justice scheduled another hearing to determine the resulting sanctions. At this hearing, defendants asserted that the Attorney General's continued misconduct warranted dismissal of the equitable abatement remedy sought by the state. The Attorney General, in turn, urged against the imposition of sanctions, arguing that the December order was constitutionally infirm because it was too vague to inform the parties as to what expression actually was prohibited.


    The trial justice memorialized his bench decision of May 1, 2006 in a written order on June 2, 2006, specifically finding the Attorney General in civil contempt of the November order, as amended on December 6, 2005, and, apparently, the court's 463*463 directive of February 22, 2006.[24] The trial justice denied defendants' request for sanctions and he also denied the Attorney General's request to defer imposing a sanction until an appeal had been heard. Instead, the trial justice ordered that the Attorney General personally pay the clerk of the Providence County Superior Court $10,000, in addition to the previously imposed $5,000 sanction.[25]


    The Attorney General's Appeal to this Court

    On June 5, 2006, the state and the Attorney General appealed the trial justice's findings of contempt and his imposition of sanctions.[26] They then asked this Court to stay paragraph 1.1 of the Superior Court's December order. We agreed to do so on June 15, 2006, although we emphasized that the trial court's order directing the Attorney General to comply with Rule 3.6 remained in full effect.


    In its appeal, the state refutes the trial justice's findings of contempt, asserting that the Attorney General had a common-law privilege and a duty as a constitutional officer to comment on this case because it was a matter of public importance. Further, the state argues that the trial justice's application of Rule 3.6 to the Attorney General was unconstitutional because it violated his First Amendment rights and that, in any event, the "spin and twist" comment did not violate the rule because no reasonable attorney would have believed that there was a substantial likelihood that the statement would prejudice the pending trial. The state also contends that paragraph 1.1 of the December order was unconstitutionally vague and overbroad, and that the Attorney General's website posting did not violate any of the Superior Court's prohibitions. Finally, the state argues that the penalties imposed by the trial justice were excessive.


    The defendants counter that (1) the trial justice's orders were necessary to protect their right to a fair trial, (2) the state waived its rights, under the collateral-bar doctrine, to challenge the enforceability of the Superior Court's orders,[27] (3) the Attorney General was not exempt from Rule 3.6, which strikes an appropriate balance between his First Amendment rights and defendants' right to a fair trial, (4) the trial justice's findings of contempt were neither clearly wrong nor arbitrary, (5) the monetary sanctions imposed were within the broad discretion of the trial court,[28] and (6) the Attorney General's comments were not "core political speech" protected by the First Amendment.


    464*464 After considering the record, the briefs submitted by the parties, and the oral arguments of counsel, we respectfully disagree with the trial justice's findings of contempt. With regard to the first contempt finding, irrespective of whether the November order meets constitutional muster and was enforceable,[29] we nonetheless do not believe the Attorney General's "spin and twist" comment violated that order. We also disagree with the second finding of contempt because (1) we do not believe the December order was enforceable against the Attorney General and (2) we do not think the Attorney General's official website posting violated any directive from the trial court. For these reasons, we reverse the Superior Court's findings of contempt and we vacate all related sanctions.




    Standard of Review

    "A finding of contempt is within the sound discretion of the trial justice." Durfee v. Ocean State Steel, Inc., 636 A.2d 698, 704 (R.I.1994) (citing Brierly v. Brierly, 431 A.2d 410, 412 (R.I.1981)). Factual findings at a contempt hearing "will not be disturbed unless they are clearly wrong or the trial justice abused his or her discretion." Id. "A complaining party can establish civil contempt on behalf of his opponent when there is clear and convincing evidence that a lawful decree has been violated." Nardone v. Ritacco, 936 A.2d 200, 204 (R.I.2007) (quoting Direct Action for Rights and Equality v. Gannon, 819 A.2d 651, 661 (R.I.2003)).


    We apply a de novo standard of review, however, to questions of law, as well as to mixed questions of fact and law that purportedly implicate a constitutional right. See Foley v. Osborne Court Condominium, 724 A.2d 436, 439 (R.I.1999) (citing State v. Campbell, 691 A.2d 564, 569 (R.I.1997)). Thus, in cases raising First Amendment challenges, we "`make an independent examination of the whole record' in order to make sure that `the judgment does not constitute a forbidden intrusion on the field of free expression.'" Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)).


    Contempt Finding Based on the "Spin and Twist" Comment

    Based on the "spin and twist" comment he made to the media on November 16, 2005, the trial justice found the Attorney General in contempt of the court's November order, which required that the Attorney General abide by Rule 3.6. After careful review, we hold that irrespective of the validity and enforceability of that order, the Attorney General's "spin and twist" comment did not violate its provisions. Therefore, we reverse the trial justice's first finding of contempt and vacate the sanction imposed.


    Constitutionality, Clarity, and Specificity of the November Order

    To be enforceable, a court order such as the one at issue here must pass constitutional muster, as it implicates the Attorney General's First Amendment rights, and it also must be sufficiently clear to put the effected parties on notice of the order's proscriptions. A prior restraint is "a predetermined judicial prohibition restraining specified expression." Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 248 (7th Cir.1975). "Although the `guarantees of freedom of expression are not an absolute prohibition under all circumstances, * * * the barriers to prior restraint remain high and the presumption against its use continues intact.'" In re Court Order Dated October 22, 2003, 886 A.2d 342, 350 (R.I.2005) (quoting Nebraska Press Association v. Stuart, 427 U.S. 539, 570, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976)). "[P]rior restraint on speech and publication are the most serious and the least tolerable infringement on First Amendment rights." Id. at 350-51.


    Although not unconstitutional per se, any prior restraint on expression bears a heavy presumption against its validity. See Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). To withstand constitutional scrutiny, a court's restrictive order "must fit within one of the narrowly defined exceptions to the prohibition against prior restraints." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (citing Bantam Books, Inc., 372 U.S. at 71, 83 S.Ct. 631). Courts have permitted some restrictions on speech when disclosure of information concerning pending litigation by the parties or their counsel would threaten a litigant's right to a fair trial. See, e.g., Bauer, 522 F.2d at 248. The United States Supreme Court specifically has held that a lawyer's free expression may be limited to the extent that the speech presents a "substantial likelihood of materially prejudic[ing]" a fair trial. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1063, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) (Rehnquist, C.J., joined by White, Scalia, and Souter, JJ.); see id. at 1082, 111 S.Ct. 2720 (O'Connor, J., concurring) ("I agree with [the Chief Justice] that the `substantial likelihood of material prejudice' standard * * * passes constitutional muster.").[30]


    To be the basis of a contempt finding, the court's November order also must be sufficiently clear. "A civil contempt proceeding is an appropriate vehicle to enforce compliance with court orders and decrees when attempting to preserve and enforce the rights of [the parties]." Trahan v. Trahan, 455 A.2d 1307, 1311 (R.I.1983). It is well settled that for a restraining order to be enforceable by contempt proceedings, it "should be clear and certain and its terms should be sufficient to enable one reading the writ or order to learn therefrom what he may or may not do thereunder." Ventures Management 466*466 Co. v. Geruso, 434 A.2d 252, 254 (R.I.1981) (quoting Sunbeam Corp. v. Ross-Simons, Inc., 86 R.I. 189, 194, 134 A.2d 160, 162 (1957)). Furthermore, "[t]he terms of the order should be specific, clear and precise so that one need not resort to inference or implications to ascertain his duty or obligation thereunder." Id. "[T]he clarity of an order must be evaluated by a reasonableness standard, considering both the context in which it was entered and the audience to which it was addressed." United States v. Cutler, 58 F.3d 825, 835 (2d Cir.1995).


    In this case, however, even assuming without deciding that the order of November 3, 2005, meets all constitutional requirements and is sufficiently clear, we hold that the contempt finding must be reversed because the Attorney General did not violate the court's order.


    No Violation of the November Order

    To establish civil contempt, there must be a showing by clear and convincing evidence that a specific order of the court has been violated. Direct Action for Rights and Equality, 819 A.2d at 661 (citing Trahan, 455 A.2d at 1311). "A finding of civil contempt must be based on a party's lack of substantial compliance with a court order, which is demonstrated by the failure of a party to `employ[ ] the utmost diligence in discharging [its] * * * responsibilities.'" Gardiner v. Gardiner, 821 A.2d 229, 232 (R.I.2003) (quoting Durfee, 636 A.2d at 704). Determining whether there has been substantial compliance with an order of the court, so as to avoid a finding of civil contempt, "depend[s] on the circumstances of each case, including the nature of the interest at stake and the degree to which noncompliance affects that interest." Durfee, 636 A.2d at 704 (quoting Fortin v. Commissioner of Massachusetts Department of Public Welfare, 692 F.2d 790, 795 (1st Cir.1982)).


    Because the trial justice did not make any findings of fact with respect to why he found the Attorney General in contempt, it is difficult to evaluate whether his contempt finding was clearly wrong or an abuse of discretion. See Durfee, 636 A.2d at 704. Nevertheless, we are of the opinion that the Attorney General's "spin and twist" comment did not violate the November order because the record does not support the conclusion that the Attorney General knew or reasonably should have known that his remarks could create a substantial likelihood of material prejudice.


    The Attorney General's comment was a brief statement, uttered in response to reporters' persistent and pointed questioning. Given the nature of the case — a highly contentious matter laden with public commentary from both sides and a high degree of public and media interest — we do not think the Attorney General knew or reasonably should have known that his remarks would prejudice defendants.


    Furthermore, defendants have not alleged or shown that any jurors saw or were influenced by the comments. Rather, the jury specifically and repeatedly was ordered not to read any media coverage of the trial. Although we recognize that actual prejudice need not be shown, see Gentile, 501 U.S. at 1081, 111 S.Ct. 2720 (O'Connor, J., concurring), we are not persuaded that the comment would cause any prejudice, let alone material prejudice, to defendants.


    Because we believe the Attorney General did not violate the November order, we reverse the trial justice's finding of contempt for the "spin and twist" comment and vacate the imposition of sanctions.


    Contempt Finding Based on the Attorney General's "Duck and Run" Comment

    The trial justice also found the Attorney General in contempt after he determined that the Attorney General's "duck and run" comment violated the court's December order. We conclude that the December order was unenforceable because it was not sufficiently clear to be the basis of a contempt finding. Therefore, we reverse that finding of contempt as well and vacate the subsequent imposition of sanctions.[31]


    As previously discussed, an order upon which a contempt finding is based must be sufficiently "specific, clear and precise" to put individuals on notice about what conduct is prohibited or required. Ventures Management Co., 434 A.2d at 254 (quoting Sunbeam Corp., 86 R.I. at 194, 134 A.2d at 162). The court's order on December 6, 2005, directed the Attorney General "to cease and desist from making any subjective characterizations of the defendants or any of them or of their agents, servants or attorneys." In our opinion, the term "subjective" was too vague and imprecise to allow for a subsequent finding of contempt.


    Black's Law Dictionary defines "subjective" as "[b]ased on an individual's perceptions, feelings, or intentions, as opposed to externally verifiable phenomena." Black's Law Dictionary 1465 (8th ed. 2004). The phrase "subjective characterizations" did not adequately advise the Attorney General as to what speech was allowed and what speech was prohibited, given, it seems to us, that a vast number of statements could be characterized as both objective and subjective. Given this vague wording, we do not believe that the Attorney General was put on adequate notice about what types of speech actually were prohibited. Thus, we reverse the trial justice's finding of contempt based on the "duck and run" comment and vacate the related sanctions.


    Contempt Finding Based on the Attorney General's Official Website Posting

    It appears that in his written order of June 2, 2006, the trial justice also found the Attorney General in contempt of his February 22, 2006 bench order, which prohibited any "discussion" with jurors regarding the case. Because we do not believe the Attorney General's website posting qualified as a "discussion," we reverse the finding of contempt and vacate the imposition of sanctions.


    Because of the severe consequences of a civil-contempt finding, courts have "read court decrees to mean rather precisely what they say." NBA Properties, Inc. v. Gold, 895 F.2d 30, 32 (1st Cir.1990). Any ambiguities or uncertainties in court orders are read in the light most favorable to the person charged with contempt. Id. at 32. Addressing this method of interpretation, Justice Frankfurter of the United States Supreme Court said in a colorful dissent:

    "Obedience must of course be secured for the command of a court. To secure such obedience is the function of a proceeding for contempt. But courts 468*468 should be explicit and precise in their commands and should only then be strict in exacting compliance. To be both strict and indefinite is a kind of judicial tyranny." McComb v. Jacksonville Paper Co., 336 U.S. 187, 195, 69 S.Ct. 497, 93 L.Ed. 599 (1949) (Frankfurter, J., dissenting).

    We adopted this standard in Sunbeam Corp., 86 R.I. at 195, 134 A.2d at 163, in which the respondent was enjoined from selling certain products "in its place of business." Reading this prohibition narrowly, we accepted the respondent's literal interpretation that a sale on the sidewalk outside its place of business did not violate the order. Id. at 195-96, 134 A.2d at 163. We said that "[t]his may be a narrow construction of the injunction in [respondent's] favor, but under the law as we understand it the respondent is entitled to rely on such a construction." Id. at 196, 134 A.2d at 163.


    Similarly, in United States v. Charmer Industries, Inc., 722 F.2d 1073, 1076 (2d Cir.1983), the Arizona Attorney General was enjoined "from making any publication or other use of any portion of the [defendant's Presentence] Report." When the Attorney General's office gave a newspaper reporter a memorandum with references to that report, a contempt motion was filed. Id. The trial justice, however, refused to find the attorney involved in contempt because the actual report was not provided to reporters. Id. at 1077. The Second Circuit affirmed this holding: "Although we consider [the attorney's] conduct reprehensible, we feel compelled to accept [the trial justice's] findings as not clearly erroneous and to deny the contempt motion principally because there was not a clear directive from this Court which barred the actions undertaken by [the attorney]." Id.


    Here, the parties were enjoined from having "any discussion with this jury." Interpreting this language narrowly, as we must, we cannot conclude that a website posting qualifies as a "discussion," which typically involves an exchange of information or ideas between more than one person. Constrained by the actual words in the bench order, we reverse the trial justice's finding of contempt and vacate the imposition of sanctions.


    Finally, and although we reverse each finding of contempt, we would be remiss if we did not acknowledge the enormous burden that the trial justice carried as he presided over litigation that must have seemed interminable and that always was accompanied by a significant amount of local and national media glare, public posturing, and a high level of general interest. Our reversal should in no way be interpreted as a criticism of the prodigious effort of the trial justice to control this litigation and keep all parties and counsel focused on the legal issues. Despite our vacating of the contempt orders, we continue to have enormous respect for this conscientious and scholarly trial justice.


    For the foregoing reasons, we reverse the contempt findings of the Superior Court.

    Track V

    The Contingent Fee Issue

    Justice ROBINSON for the Court.


    Although this Court has today held that the legal construct known as public nuisance does not constitute an appropriate cause of action in a case involving facts such as those presented by this case, thus technically rendering moot the issue of whether or not the execution of a contingent fee agreement between the Attorney General and certain private law firms was 469*469 appropriate, we have nevertheless decided to address the legal issues surrounding the permissibility vel non of such an arrangement.[32]


    Facts and Travel

    The public health issues surrounding the use of lead paint in Rhode Island prompted the immediately previous Attorney General to commence a civil action against defendants in the Superior Court on October 12, 1999. See State v. Lead Industries Association, Inc., 898 A.2d 1234, 1235 (R.I. 2006). Prior to commencing that civil action, cognizant of the fact that there were not adequate resources to finance such a demanding and substantial civil case, that same Attorney General had executed a contingent fee agreement with the law firms of Ness, Motley, Loadholt, Richardson & Poole (now known as Motley Rice LLP) and Decof & Grimm (now known as Decof & Decof).[33] Id. That agreement provided that, in return for their legal representation on behalf of the state in the lead paint litigation, Contingent Fee Counsel would be entitled to a fee reflecting 16 2/3 percent of any monies recovered.[34] Id.


    During the course of this litigation, defendants sought a ruling by the Superior Court that the contingent fee agreement was unenforceable and void because, in defendants' view, said agreement (1) constituted an unlawful delegation of the Attorney General's authority and (2) was violative of public policy.[35] Lead Industries Association, Inc., 898 A.2d at 1235-36. Following a series of events that are set forth in greater detail in our earlier opinion with respect to this issue, the Superior Court declined to make such a ruling and upheld the contingent fee agreement as a lawful contract. Id.


    Thereafter, defendants petitioned this Court for a writ of certiorari to review the narrow question of whether or not the contingent fee agreement between the Attorney General and Contingent Fee Counsel was lawful. Lead Industries Association, Inc., 898 A.2d at 1237. After hearing oral argument with respect to that issue on April 3, 2006, this Court ultimately declined to address the issue at that time because, upon reflection, we determined that it was not then properly justiciable. Id. at 1237-40.


    On May 15, 2008, when oral argument was held with respect to the merits (and associated issues), we also entertained further oral argument with respect to the contingent fee issue. The oral arguments of counsel in both April of 2006 and May of 2008, as well as the briefs of the parties and of amici, have been helpful to us in grappling with what is an issue of first impression for this Court.


    Capable of Repetition, Yet Evading Review

    On many occasions we have stated that we are reluctant to opine on an 470*470 issue that has become moot; as a general rule, courts should restrict themselves to the resolution of live controversies. See, e.g., Pelland v. State, 919 A.2d 373, 378 (R.I.2007); Sullivan v. Chafee, 703 A.2d 748, 752 (R.I.1997). Like so many other rules, however, this prudential rule is accompanied by an exception; pursuant to that exception, we will on occasion opine on moot questions that are "of extreme public importance [and] are capable of repetition but * * * evade review." Morris v. D'Amario, 416 A.2d 137, 139 (R.I.1980); see also Unistrut Corp. v. Department of Labor and Training, 922 A.2d 93, 99 (R.I. 2007); Krivitsky v. Town of Westerly, 823 A.2d 1144, 1146-47 (R.I.2003).


    In our view, the instant contingent fee issue falls into the latter category; we have concluded that this particular subject is one of extreme public importance and is also one that is "capable of repetition, yet evades review." State v. Cosores, 891 A.2d 893, 894 (R.I.2006) (mem.); see also State v. Perry, 944 A.2d 177, 178 (R.I.2008) (mem.) ("This Court will review moot cases when the subject matter is of `extreme public importance' and the issues are capable of repetition but evade review.") (quoting Pelland, 919 A.2d at 378); Arnold v. Lebel, 941 A.2d 813, 818-19 (R.I. 2007); see generally Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911) (employing for the first time, at least at the United States Supreme Court level, the "capable of repetition, yet evading review" formulation).


    Although we generally refrain from addressing issues that the case at hand does not require us to address, there are occasions when we deem it jurisprudentially sound to provide guidance with respect to an issue that "is bound to resurface" at some future point in time. Splendorio v. Bilray Demolition Co., 682 A.2d 461, 464 (R.I.1996); see Mello v. Superior Court, 117 R.I. 578, 581, 370 A.2d 1262, 1263 (1977) ("[I]n certain situations we will depart from the ordinary to better deal with the extraordinary."); see also State v. Delaurier, 488 A.2d 688, 691 n. 1 (R.I. 1985). This is just such an occasion. In our judgment, it would be a disservice to our fellow judicial officers and to the Attorney General and to the public at large if we were to decline to address the contingent fee issue that has been the subject of so much discussion both locally and in other jurisdictions. See note 50, infra.


    The Responsibilities and Duties of the Attorney General


    The Office of Attorney General

    We begin our analysis by directing attention to the special nature of the constitutional office of Attorney General in this state. See R.I. Const. art. 9, sec. 12.[36] In Suitor v. Nugent, 98 R.I. 56, 58, 199 A.2d 722, 723 (1964), we quoted with approval the following historical observation by the Supreme Court of Pennsylvania in the case of Commonwealth ex rel. Minerd v. Margiotti, 325 Pa. 17, 188 A. 524 (1936):

    "The office of Attorney General is an ancient one. It came into being as a necessary adjunct in the administration of the common law of England and was transported to America in the early days of the establishment of government in 471*471 the colonies as part of their English derived common law." Id. at 526.[37]

    In Rhode Island, the attorney general is vested with all the powers that that office possessed at common law. See Suitor, 98 R.I. at 58-59, 199 A.2d at 723; see also 7 Am.Jur.2d Attorney General § 6 (2007). Indeed, the Rhode Island constitution recognizes the Office of the Attorney General and provides for its continued existence with all the powers inherent at common law; it also provides that the General Assembly may imbue the Attorney General with powers in addition to those common law powers. See Suitor, 98 R.I. at 58, 199 A.2d at 723 ("The constitution did not purport to create such an office but recognized it as existing and provided for continuance of the powers and duties exercised by its occupant prior to the adoption of the constitution."); see also R.I. Const. art. 9, sec. 12.


    The Attorney General's Role Distinguished from the Role of the Usual Advocate

    Although all attorneys have numerous important duties and responsibilities by virtue of their role as members of the bar, attorneys general have additional special duties which, because of the nature of that ancient and powerful governmental office, differ from those of the usual advocate.[38] Unlike other attorneys who are engaged in the practice of law, the Attorney General "has a common law duty to represent the public interest." Newport Realty, Inc. v. Lynch, 878 A.2d 1021, 1032 (R.I.2005) (internal quotation marks omitted). As we have previously stated, "[t]he Attorney General of the State of Rhode Island holds a constitutional office with specific and significant responsibilities to the people of Rhode Island." Mottola v. Cirello, 789 A.2d 421, 424 (R.I.2002); see also State v. Briggs, 886 A.2d 735, 756 n. 9 (R.I.2005); State v. Peters, 82 R.I. 292, 297, 107 A.2d 428, 431 (1954) ("[The Attorney General] is in effect the representative of the people and not an advocate in the ordinary meaning of that term. * * * He represents all the people of the [state], including the defendant * * *.") (internal citations and quotation marks omitted).


    In view of the grave responsibilities of attorneys general vis-à-vis the public, the holder of that high office, as distinguished from the usual advocate,[39] has a special and enduring duty to "seek justice." 472*472 See, e.g., Bruce A. Green, Why Should Prosecutors "Seek Justice"?, 26 Fordham Urban L.J. 607, 612 (1999) ("The literature of the legal profession refers to the prosecutor's duty to `seek justice' or `do justice,' a professional ideal that analogizes prosecutors to judges and distinguishes prosecutors from other lawyers.").[40] In other words, the Attorney General "has the responsibility of a minister of justice and not simply that of an advocate." Commentary to Article V, Rule 3.8 of the Supreme Court Rules of Professional Conduct; see also Newport Realty, Inc., 878 A.2d at 1032; State v. Ciulla, 115 R.I. 558, 568, 351 A.2d 580, 586 (1976); Orabona v. Linscott, 49 R.I. 443, 445, 144 A. 52, 53 (1928). We are acutely aware of and are in full accord with the principle that the United States Supreme Court so cogently expressed with respect to the prosecutorial role in the frequently quoted case of Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935):

    "The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, * * * is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law * * *. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Id. at 88, 55 S.Ct. 629 (emphasis added).[41]

    While the just-quoted passage from the Supreme Court's unanimous opinion in the Berger case related to a federal criminal 473*473 prosecution, it is our conviction that the same philosophy should guide each and every undertaking of the Attorney General of this state. It is the duty of the Attorney General to see to it "that justice shall be done" not only in the context of criminal prosecutions, but also while he or she carries out all the functions of that high office-including engagement in litigation in the civil arena. Id.; see generally Freeport-McMoRan Oil & Gas Co. v. Federal Energy Regulatory Commission, 962 F.2d 45, 47 (D.C.Cir.1992) (Mikva, C.J.) (stating that the solemn duty to do justice applies "with equal force to the government's civil lawyers").[42]


    The principle that it is a government lawyer's duty to seek justice is as widely recognized as it is venerable.[43] See, e.g., Brady v. Maryland, 373 U.S. 83, 88, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Freeport-McMoRan Oil & Gas Co., 962 F.2d at 47; Hurd v. People, 25 Mich. 404, 416 (1872) ("The prosecuting officer represents the public interest * * *. His object like that of the court, should be simply justice; and he has no right to sacrifice this to any pride of professional success."); Foute v. State, 4 Tenn. (3 Hayw.) 98, 99 (1816) ("[The prosecutor] is * * * to * * * combine the public welfare and the [safety] of the citizens, preserving both, and not impairing either; he is to decline the use of individual passions, and individual malevolence, when he can not use them for the advantage of the public; he is to lay hold of them where public justice * * * requires it."). It is a principle that must at all times be carefully adhered to by every person who serves in that capacity, and the courts must be ever vigilant in this regard.


    Pursuant to article 9, section 12, of the present Rhode Island Constitution, the duties and powers of the Attorney General remain the same under the Constitution as they had existed at the time the Constitution was adopted "or as from time to time may be prescribed by law." Accordingly, the Attorney General in Rhode Island has broad powers and responsibilities pursuant to the Rhode Island Constitution, several Rhode Island statutes,[44] and the common law.[45] In the course of exercising those powers, the Attorney General is vested with broad discretion.[46] 474*474 In view of the Attorney General's position as a constitutional officer and in view of his or her considerable discretionary powers, this Court has historically tended, whenever appropriate, to give deference to the strategic and tactical decisions made by those who hold that high office. See, e.g., Mottola, 789 A.2d at 425 ("It is not the province of this Court, or the Superior Court, to dictate how the Attorney General elects to carry out the * * * functions of his office.").


    It is our view that the Attorney General is entitled to act with a significant degree of autonomy, particularly since the Attorney General is a constitutional officer and is an independent official elected by the people of Rhode Island. We are impressed by the following language that appears in the opinion of the United States Court of Appeals for the Fifth Circuit in the case of State ex rel. Shevin v. Exxon Corp., 526 F.2d 266 (5th Cir.1976):

    "The Attorney General is elected by the people; he is entrusted by them with the common law power to legally represent them or some of them in matters deemed by him to affect the public interest. * * * Regardless of the effectiveness of his efforts in particular public legal situations, at least the people have the continuing satisfaction of knowing that their elected Attorney General has the right to exercise his conscientious official discretion to enter into those legal matters deemed by him to involve the public interest, even though not expressly authorized by statute." Id. at 268 n. 6 (internal quotation marks omitted).[47]

    Bearing in mind the foregoing considerations relative to the Attorney General's powers and responsibilities, we now turn to the concrete issue before us — viz., whether or not it is appropriate for the holder of that office to enter into a contingent fee agreement in a civil case such as this one.


    The Propriety of Contingent Fee Arrangements

    Although we are keenly aware of the gravity of the issue and of the fact 475*475 that thoughtful and potent policy-based arguments have been made on both sides of the issue, in the end we have concluded that, in principle, there is nothing unconstitutional or illegal or inappropriate in a contractual relationship whereby the Attorney General hires outside attorneys on a contingent fee basis to assist in the litigation of certain non-criminal[48] matters. Indeed, it is our view that the ability of the Attorney General to enter into such contractual relationships may well, in some circumstances, lead to results that will be beneficial to society — results which otherwise might not have been attainable.[49] However, due to the special duty of attorneys general to "seek justice" and their wide discretion with respect to same, such contractual relationships must be accompanied by exacting limitations. In short, it is our view that the Attorney General is not precluded from engaging private counsel pursuant to a contingent fee agreement in order to assist in certain civil litigation, so long as the Office of Attorney General retains absolute and total control over all critical decision-making in any case in which such agreements have been entered into.[50] See, e.g., County of Santa Clara v. 476*476 Superior Court, 161 Cal.App.4th 1140, 74 Cal.Rptr.3d 842, 850 (2008). In our view, it is imperative that the case-management authority of the Attorney General, where a contingent fee agreement is involved, be "final, sole and unreviewable." Philip Morris Inc. v. Glendening, 349 Md. 660, 709 A.2d 1230, 1243 (1998).[51]


    As we have sought to explain in some detail earlier in this opinion, attorneys general are charged with the special duty to seek justice — a duty which is quite different from the responsibilities of the usual advocate. In accordance with that principle, we wholeheartedly agree with Chief Judge Mikva of the United States Court of Appeals for the District of Columbia when he wrote in almost perfervid language:

    "Government lawyers * * * should also refrain from continuing litigation that is obviously pointless, that could easily be resolved, and that wastes Court time and taxpayer money. * * * [A] government lawyer has obligations that might sometimes trump the desire to pound an opponent into submission." Freeport-McMoRan Oil & Gas Co., 962 F.2d at 47, 48.

    The usual advocate, on the other hand, is not held to quite such an abnegatory and demanding standard. Accordingly, in order to ensure that a contingent fee agreement is not adverse to the standards that an attorney representing the government must meet, it is vital that the Office of the Attorney General have absolute control over the course of any litigation originating in that office.


    At the risk of being repetitive, we would emphasize that the Attorney General's discretionary decision-making must not be delegated to the control of outside counsel; rather, it is the outside counsel who must serve in a subordinate role. See United States v. Cox, 342 F.2d 167, 192 (5th Cir.1965) ("[The Attorney General] is the representative of the public in whom is lodged a discretion which is not to be controlled by * * * an interested individual, or by a group of interested individuals * * *."); People v. Superior Court of Contra Costa County, 19 Cal.3d 255, 137 Cal. Rptr. 476, 561 P.2d 1164, 1172 (1977) ("[The] advantage of public prosecution is lost if those exercising the discretionary duties of the [Attorney General] are subject to conflicting personal interests which might tend to compromise their impartiality."); see also County of Santa Clara, 74 Cal.Rptr.3d at 850 (holding that the duty 477*477 of government attorneys to seek justice is not contravened when private counsel, retained on a contingent fee basis, "are merely assisting * * * in the litigation * * * and are explicitly serving in a subordinate role * * *.").


    In order to ensure that meaningful decision-making power remains in the hands of the Attorney General, it is our view that, at a bare minimum, the following limitations should be expressly set forth in any contingent fee agreement between that office and private counsel: (1) that the Office of the Attorney General will retain complete control over the course and conduct of the case; (2) that, in a similar vein, the Office of the Attorney General retains a veto power over any decisions made by outside counsel; and (3) that a senior member of the Attorney General's staff must be personally involved in all stages of the litigation.[52]


    Moreover, not only must the Attorney General have absolute control over all stages of the litigation, but he or she must also appear to the citizenry of Rhode Island and to the world at large to be exercising such control. See Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954) ("[J]ustice must satisfy the appearance of justice."); see also Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 806, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987); Marshall v. Jerrico, 446 U.S. 238, 242, 243, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980); Superior Court of Contra Costa County, 137 Cal.Rptr. 476, 561 P.2d at 1172 ("[I]t is precisely because the prosecutor enjoys such broad discretion that the public he serves and those he accuses may justifiably demand that he perform his functions with the highest degree of integrity and impartiality, and with the appearance thereof.")(emphasis added).


    The Appropriation Issue


    The Defendants' Contention

    We now turn to address defendants' contention that contingent fee agreements between the Attorney General and private counsel are violative of Rhode Island law because (in defendants' view) such agreements are tantamount to an unlawful appropriation of state funds. The defendants contend that, when the Office of the Attorney General finds itself in receipt of money that rightly is the state's, it must pay all of that money into the General Treasury.[53] The defendants maintain that 478*478 contingent fee agreements would permit the Attorney General to circumvent the statutory requirement of payment to the General Treasury because such agreements would provide that a percentage of any damages would have to be paid to outside counsel before the balance would be passed on to the General Treasury. As defendants phrase their argument, officers of the state, including the Attorney General, "are not permitted to decide for themselves to divert the State's receipts * * *."


    The Equitable Lien

    We have given due consideration to defendants' argument that payment of a contingent fee would represent an illegal diversion of the state's receipts, but we have concluded that defendants' position is overly myopic.


    In our judgment, a successful contingent fee attorney has an equitable lien on any recovered damages in accordance with the term of the fee agreement.[54] See Button's Estate v. Anderson, 112 Vt. 531, 28 A.2d 404, 406 (1942) ("Where the parties have contracted that the attorney shall receive a specified amount of the recovered fund, such agreement will create an equitable lien on the fund in favor of the attorney * * *.") (emphasis added);[55] see also Barnes v. Alexander, 232 U.S. 117, 120, 34 S.Ct. 276, 58 L.Ed. 530 (1914) (Holmes, J.); Wylie v. Coxe, 56 U.S. (15 How.) 415, 419-20, 14 L.Ed. 753 (1853); 7 Am.Jur.2d Attorneys at Law § 319 at 354 (2007) ("Where the parties contract that the attorney will receive his or her fee from the amount recovered, the agreement creates an equitable lien in favor of the attorney * * *."). After the appropriate fee has been paid to contingent fee counsel, the net amount would constitute what defendants characterize as "the State's receipts" — and that amount would indeed be payable to the General Treasury.[56]


    The amount properly to be paid to contingent fee counsel pursuant to a contingent fee agreement falls within the realm of equity; as such, it is inherently within a court's discretion to oversee the payment of such amounts to contingent fee counsel. Although the state would hold the legal title to any damages that might be awarded to the state in a civil trial, outside counsel who are retained on a contingent fee basis would have an equitable right to the portion of such damages that represents 479*479 their fee (subject to the significant caveat referenced in the next subsection of this opinion). See State v. Hagerty, 580 N.W.2d 139, 144-45 (N.D.1998); Button's Estate, 28 A.2d at 406-07, 409-10; City of Montpelier v. Gates, 106 Vt. 116, 170 A. 473, 475-76 (1934). We unreservedly agree with the Supreme Court of Vermont when it made the following helpful distinction between legal title and equitable rights in the context with which we are presently confronted:

    "Although the legal title to the whole fund no doubt is in the State, the [contingent fee attorneys] have equitable rights to that portion of the same which represents their fee. This part in all equity and good conscience belongs to them. They have earned it and should receive it. This portion of the fund never legally and equitably belonged to the State as part of its public funds for, at the latest, when received, the lien attached to it and remains upon it so that it is held by the State subject to the same." Button's Estate, 28 A.2d at 410 (emphasis added).

    As that same court stated in an earlier case: "It is all a matter of bookkeeping, and an honest creditor is not to be denied, simply because the payment of his claim may somewhat upset the treasurer's books." City of Montpelier, 170 A. at 475; see also Button's Estate, 28 A.2d at 410.


    Judicial Oversight

    It is our view that, in cases such as the one at bar, the contingent fee payable to outside counsel should be subject to oversight and scrutiny by the courts before payment is made to said counsel and before any net amount would be payable to the state. Courts have the inherent authority to review attorney contingent fee contracts in order to prevent unreasonableness.[57] See, e.g., In re Boston and Maine Corp. v. Sheehan, Phinney, Bass & Green, P.A., 778 F.2d 890, 896 (1st Cir. 1985) ("Contingent fees are, of course, of special concern to courts and are subject to strict judicial supervision."); see also United States ex rel. Taxpayers Against Fraud v. General Electric Co., 41 F.3d 1032, 1047 (6th Cir.1994) ("[A]n attorney's right to contract for a contingent fee is not completely beyond judicial control. A lawyer is first an officer of the court, and as such his commercial contractual rights must yield to his duty. [A] judge has broad equity power to supervise the collection of attorney's fees under contingency fee contracts.") (internal quotation marks omitted); In re "Agent Orange" Product Liability Litigation, 818 F.2d 226, 240 (2d Cir.1987) (holding that, pursuant to a well established principle, courts may review contingent fee agreements); International Travel Arrangers, Inc. v. Western Airlines, Inc., 623 F.2d 1255, 1277 (8th Cir. 1980) ("The court has the power and the responsibility to monitor contingency fee agreements for reasonableness."); Farmington Dowel Products Co. v. Forster Mfg. Co., 421 F.2d 61, 90-91 (1st Cir.1969); 7 Am.Jur.2d Attorneys at Law § 239 at 288 (2007) ("Courts possess traditional authority to supervise the charging of fees for legal services pursuant to their inherent and statutory power to regulate the practice of law."). Moreover, a court may examine an attorney's fee for reasonableness even when the parties themselves have not 480*480 challenged the validity of the fee arrangement. See Rosquist v. Soo Line Railroad, 692 F.2d 1107, 1111 (7th Cir.1982); see also 7 Am.Jur.2d § 239 at 288 ("A court may inquire into the reasonableness of attorney fees as part of its inherent authority to regulate the practice of law.").


    After a court has performed the function of reviewing and approving such a fee, thus allowing the requisite fee to be paid to the contingent fee counsel, the resulting balance would then be turned over to the General Treasury. See Hagerty, 580 N.W.2d at 143, 143-45 (holding that a contingent fee agreement between the Attorney General and outside counsel did not violate the provision in the constitution of that state to the effect that all state "moneys * * * be paid into the treasury and disbursed only pursuant to legislative appropriation" because the contingent fee counsel had an equitable right to a certain portion of any damages).


    Accordingly, it is our view that contingent fee agreements between the Attorney General and outside counsel would not be violative of the statutory provisions that require that all money due to or belonging to the state be paid to the General Treasurer.


    We conclude our discussion of the contingent fee issue by emphasizing our awareness that this issue involves competing values — each of which deserves respect. Attorneys who choose to litigate under contingent fee agreements understandably often have motives that, in whole or in part, are monetary in nature. Such motivation is qualitatively different from the more pristine considerations that should guide the Attorney General's decision-making. While we do not look upon contingent fee agreements with a jaundiced eye due to the fact that they inherently implicate personal profit-making as a motivation,[58] it is precisely because of the possibility of that motivating factor having an influence on decisions made by contingent fee counsel that it is utterly imperative that absolute primacy be accorded at all times to the decision-making role of the Attorney General when he or she has entered into an agreement with contingent fee counsel. Such absolute primacy is necessary in order to ensure that the profit-making motivation is always subordinated to the Attorney General's "common law duty to represent the public interest." Newport Realty, Inc., 878 A.2d at 1032 (internal quotation marks omitted).

    Summary of Conclusions

    For the forgoing reasons, we (1) reverse the judgment of abatement with respect to defendants, Millennium, NL, and Sherwin-Williams; (2) affirm the judgment with respect to defendant ARCO; (3) reverse the contempt findings of the Superior Court; and (4) recognize the validity of certain contingency fee agreements between the Attorney General and outside counsel.


    The following observation contained in an opinion authored by Judge Bruce Selya of the United States Court of Appeals for the First Circuit expresses this Court's sentiments:

    "This is a hard case — hard not in the sense that it is legally difficult or tough to crack, but in the sense that it requires us * * * to deny relief to a plaintiff for whom we have considerable sympathy. We do what we must, `for it is the duty of all courts of justice to take care, for the general good of the community, that 481*481 hard cases do not make bad law.'" Burnham v. Guardian Life Insurance Company of America, 873 F.2d 486, 487 (1st Cir.1989).

    Justice Goldberg did not participate.


    [1] See State of Rhode Island v. Lead Industries Association, Inc., No. PC 99-5226, 2007 WL 711824, 2007 R.I.Super. LEXIS 32 (Feb. 26, 2007); see also Peter B. Lord, Jurors in lead-paint trial say they're proud of verdict, The Providence Journal, Mar. 12, 2006, at B1 (noting that "court officials believe [the lead paint trial] was the longest civil trial in state history").


    [2] Lisa A. Perillo, Note: Scraping Beneath the Surface: Finally Holding Lead-Based Paint Manufacturers Liable by Applying Public Nuisance and Market-Share Liability Theories?, 32 Hofstra L.Rev. 1039, 1041 (2004).


    [3] The members of this Court extend their sincere gratitude and appreciation to Justice Michael A. Silverstein and his staff, especially court reporter Rosemary Patalano and clerk Jean Maggiacomo, for their diligent work through two trials, nineteen written rulings, and thousands of transcript pages of testimony and hearings. We also thank counsel for the respective-parties for their cooperation in participating at numerous scheduling conferences and in providing the Court with electronic appendices, thereby helping us effectively to tackle this difficult and problematic case. Finally, we would be remiss if we did not recognize that the briefs of the parties and of the amici curiae and the oral arguments by counsel were particularly helpful to us.


    [4] Law consists not only of legislative enactments, but also of certain principles, norms, and causes of action that have evolved over centuries as "the common law."


    [5] Patricia A. Nolan, M.D., estimated that at the time of trial, between 240,000 and 250,000 Rhode Island homes contained lead-based paint.


    [6] The municipalities described as "core cities" are Central Falls, Newport, Pawtucket, Providence, (the town of) West Warwick, and Woonsocket. Rhode Island Department of Health, Childhood Lead Poisoning in Rhode Island: The Numbers 2005 Edition 4, 15.


    [7] The Lead Industries Association (LIA) declared bankruptcy before the second trial of this case.


    [8] Millennium Inorganic Chemicals, Inc. later was added to the complaint as the successor to The Glidden Company's lead pigment business. See also infra note 14 for the status of Millennium Inorganic Chemicals, Inc.


    [9] The O'Brien Corporation ultimately was dropped from this lawsuit.


    [10] The trial justice later granted American Cyanamid Company's motion to sever the state's claims against it from the primary trial. The trial justice explained that American Cyanamid, which had limited involvement with the LIA for a short period in the 1970s, might be prejudiced by proceeding to trial with other defendants that had experienced much greater involvement with the LIA.


    [11] E.I. Du Pont de Nemours and Company settled with the state before the second trial.


    [12] The trial court later dismissed the state's claim against ConAgra Grocery Products Company (ConAgra), finding that paint manufactured by the W.P. Fuller Paint Company, ConAgra's predecessor, or ConAgra was not present in Rhode Island.


    [13] Cytec Industries, Inc. ultimately was dropped from this lawsuit.


    [14] By stipulation of the state and Millennium Inorganic Chemicals, Inc. (Millennium Inorganic), on August 13, 2004, Millennium Holdings LLC was substituted for Millennium Inorganic as if Millennium Holdings LLC had been named as the defendant at the outset of this litigation. Millennium Inorganic was thereby dismissed without prejudice.


    [15] The state eliminated that count of its original complaint seeking equitable relief to protect children when it filed its second-amended complaint.


    [16] See In re Lead Paint Litigation, 191 N.J. 405, 924 A.2d 484, 506 (2007) (Zazzali, C.J., dissenting) (positing that courts have "a duty to reconcile outdated formulations of the common law with the complexities of contemporary society. * * * [As such,] [t]he common law must `stand ready to adapt as appropriate, to shape, redress, and remedy so as to answer measure for measure the particular evil it pursues.'") (quoting Tachiona v. Mugabe, 169 F.Supp.2d 259, 318 (S.D.N.Y.2001), rev'd on other grounds, 386 F.3d 205 (2d Cir. 2004)).


    [17] The tort of public nuisance has been described as "at least contested, and perhaps confused beyond repair," Louise A. Halper, Untangling the Nuisance Knot, 26 B.C. Envtl. Aff. L. Rev. 89, 96 (1998) and as an "impenetrable jungle," W. Page Keeton et al., Handbook of the Law of Torts, ch. 15, § 86 at 616 (5th ed. 1984). It has been said that "[nuisance] has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie. There is general agreement that it is incapable of any exact or comprehensive definition." W. Page Keeton et al., ch. 15, § 86 at 616.


    [18] Soon after, Millennium also filed a motion for both severance and a continuance. Millennium argued that the Attorney General's comments in the above-cited Providence Journal article prevented it from receiving a fair trial. Sherwin-Williams also filed a similar motion, citing various articles and arguing that the Attorney General's statements undermined its right to an impartial jury. The trial justice denied both motions.


    [19] At the time, Article V, Rule 3.6 of the Supreme Court Rules of Professional Conduct said in full:


    "(a) A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.


    "(b) A statement referred to in paragraph (a) ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement relates to:


    "(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;


    "(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement;


    "(3) the performance or results of any examination or test or the refusal or failure to a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;


    "(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;


    "(5) information the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and would if disclosed create a substantial risk of prejudicing an impartial trial; or


    "(6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.


    "(c) Notwithstanding paragraphs (a) and (b)(1-5), a lawyer involved in the investigation or litigation of a matter may state without elaboration:


    "(1) the general nature of the claim or defense;


    "(2) the information contained in a public record;


    "(3) that an investigation of the matter is in progress, including the general scope of the investigation, the offense or claim or defense involved and, except when prohibited by law, the identity of the persons involved;


    "(4) the scheduling or result of any step in litigation;


    "(5) a request for assistance in obtaining evidence and information necessary thereto;


    "(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interests; and


    "(7) in a criminal case:


    "(i) the identity, residence, occupation and family status of the accused;


    "(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;


    "(iii) the fact, time and place of arrest; and


    "(iv) the identity of investigating and arresting officers or agencies and the length of the investigation."


    [20] The Attorney General immediately moved for a stay of the court's imposition of sanctions so he could appeal the contempt finding, which the trial justice agreed to do. The Attorney General then filed a notice of appeal and he asked this Court to seal the notice, the relevant docket sheet, and all pleadings and submissions filed in connection with the contempt appeal. The Attorney General, however, apparently later abandoned the appeal.


    [21] The trial justice sealed this order as well as the contempt-hearing transcript.


    [22] At this time, the jury had returned a verdict in favor of the state, but had not determined punitive damages.


    [23] Because Article V, Rule 3.5 of the Supreme Court Rules of Professional Conduct never was incorporated into an order, the trial justice did not and could not have found the Attorney General in contempt for violating that rule.


    [24] Although neither the bench decision nor the subsequent written order referred to the trial justice's February 22, 2006 warning to the parties to avoid "discussion" with the jury, the trial justice's contempt finding based on the Attorney General's website posting undeniably rested in part on that directive.


    [25] The trial justice again granted a stay of the sanctions to permit the Attorney General to seek appellate review.


    [26] For ease of reference, we will refer to plaintiffs, who appealed the contempt findings and sanctions, as either the Attorney General or state.


    [27] In jurisdictions in which it is recognized, the collateral-bar doctrine prohibits a party from questioning the validity of an underlying order for the first time in a contempt hearing. Because we reverse the trial justice's findings of contempt and vacate the imposition of sanctions, however, we do not need to address this argument. We express no view on whether the collateral-bar doctrine should be recognized in this jurisdiction.


    [28] Again, because we vacate the imposition of sanctions, we do not address the propriety of the amount of those sanctions.


    [29] The state argues on appeal that the November order was unenforceable, asserting that the order was an unconstitutional prior restraint on expression and was not sufficiently clear. Because this Court will not decide a case on constitutional grounds when it otherwise can be decided, see Caron v. Town of North Smithfield, 885 A.2d 1163, 1165 (R.I. 2005) (mem.); In re Court Order Dated October 22, 2003, 886 A.2d 342, 350 n. 7 (R.I. 2005); Amico's Inc. v. Mattos, 789 A.2d 899, 909 (R.I.2002), and because we find that there was no violation of the November order, we need not address these arguments.


    [30] It should be noted, however, that a majority of the Gentile Court said that the disputed Nevada rule was void for vagueness based on a safe-harbor provision. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1048, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991) (Kennedy, J., joined by Marshall, Blackmun, Stevens, and O'Connor, JJ.) Although a similar safe-harbor provision is present in Rule 3.6(c), this subsection is not at issue in this case; the Attorney General has not cited or relied upon Rule 3.6(c), and he does not argue on appeal that any of his challenged public statements are protected by that provision.


    [31] Again, we decline to base our decision on constitutional grounds given the previously discussed precedent. We note, however, that in an order issued on June 15, 2006, we indicated our grave reservations concerning the constitutionality of paragraph 1.1: "being acutely mindful of our legal tradition of opting in favor of permitting the exercise of free speech rights except in truly unusual circumstances, we have concluded that the Order in question should be stayed pending final resolution by this Court."


    [32] Our reasons for reaching the contingent fee issue in spite of the presence of mootness are set forth in section "II" of this opinion, infra.


    [33] We shall refer to the two law firms collectively as "Contingent Fee Counsel."


    [34] Pertinent portions of the contingent fee agreement between the Attorney General and Contingent Fee Counsel are set forth extensively in this Court's earlier opinion concerning the contingent fee issue. State v. Lead Industries Association, Inc., 898 A.2d 1234, 1235-36 n. 4 (R.I.2006).


    [35] The defendants' public policy argument was largely predicated on the reasoning of the Supreme Court of California in People ex rel. Clancy v. Superior Court, 39 Cal.3d 740, 218 Cal.Rptr. 24, 705 P.2d 347 (1985).


    [36] Article 9, section 12, of the Rhode Island Constitution reads in its entirety as follows:


    "The duties and powers of the secretary, attorney-general and general treasurer shall be the same under this Constitution as are now established, or as from time to time may be prescribed by law."


    [37] The office of Attorney General is of ancient vintage. It was known to Shakespeare (see Richard II, act 2, sc. 1), and it appears to have existed long before that era. See Hugh H.L. Bellot, The Origin of the Attorney-General, 25 L.Q. Rev. 400, 404 (1909).


    [38] In this opinion's discussion concerning the special duties of attorneys general, we shall frequently employ the term "the usual advocate" to refer to the broad class of all attorney advocates as distinguished from the much narrower class of those lawyers who are attorneys general or employees of same. The term "the usual advocate" is used in this manner in the American Bar Association Model Code of Professional Responsibility. See note 40, infra. Our use of said term implies absolutely no disrespect.


    [39] We wish to indicate in the strongest terms that we should not be understood as implying that lawyers in general should be indifferent to the need for justice in our society. Indeed, members of the legal profession should be especially sensitive to that noble concept and should be proactive in efforts to bring about an ever more just society. See generally Preamble to the Supreme Court Rules of Professional Conduct.


    At the same time, however, given the nature of the adversary system, it is requisite that, when engaged in litigation, "the usual advocate" (as contrasted with the Attorney General) must single-mindedly represent the client to the best of his or her ability, and opposing counsel must do likewise for the other party. The adversary system is based upon the assumption that truth and justice will be the end product of this dialectical process. See, e.g., Gannett Co. v. DePasquale, 443 U.S. 368, 384, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) ("[O]ur adversary system * * * is premised upon the proposition that the public interest is fully protected by the participants in the litigation."). Although there undoubtedly are occasions when the adversary system does not yield such an end product, it is nonetheless the system that Anglo-American jurisprudence has for centuries deemed to be the best for arriving at truth and justice.


    [40] See also American Bar Association Model Code of Professional Responsibility EC 7-14 ("A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice * * *.") (emphasis added) (hereinafter ABA Model Code); ABA Model Code EC 7-13 ("The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict."). (Emphasis added.)


    The ABA Model Code further elaborates on the duty of attorneys general to seek justice in the following words:


    "This special duty exists because: (1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers; * * * [and] (2) during trial the prosecutor is not only an advocate but he also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all * * *." EC 7-13.


    [41] See also Brady v. Maryland, 373 U.S. 83, 87 n. 2, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ("[T]he Government wins its point when justice is done in its courts.") (quoting Solicitor General Frederick W. Lehmann as attributed to him by Solicitor General (later Judge) Simon E. Sobeloff in an address before the Judicial Conference of the Fourth Circuit (June 29, 1954)); United States v. Bartelho, 129 F.3d 663, 671 (1st Cir.1997) (also quoting Solicitor General Sobeloff's address); Trout v. Garrett, 780 F.Supp. 1396, 1421 n. 60 (D.D.C. 1991) (noting that the following variant of Solicitor General Lehmann's statement is carved as an inscription above the entrance to the Office of the Attorney General of the United States: "The United States wins its point whenever justice is done its citizens in the courts.").


    [42] The ABA Model Code expressly states that a "government lawyer in a civil action or administrative proceeding has the responsibility to seek justice" and "should refrain from instituting or continuing litigation that is obviously unfair." EC 7-14; see also City of Los Angeles v. Decker, 18 Cal.3d 860, 135 Cal. Rptr. 647, 558 P.2d 545, 551 (1977) ("Occupying a position analogous to a public prosecutor, [a government lawyer in the civil arena] is possessed of important governmental powers that are pledged to the accomplishment of one objective only, that of impartial justice.") (internal quotation marks omitted).


    [43] For a more complete exposition of the origins of the concept that it is the duty of attorneys general to seek justice, see Bruce A. Green, Why Should Prosecutors "Seek Justice"?, 26 Fordham Urban L.J. 607 (1999).


    [44] See, e.g., G.L. 1956 chapter 9 of title 42 (establishing the department of the attorney general and setting forth its powers and duties); G.L. 1956 § 12-1-4 (creating a division of criminal identification in the department of the attorney general); § 12-1-7 (providing that the attorney general shall procure and file certain criminal identification records); § 12-1-8.1 (concerning a method of identification).


    [45] See Suitor v. Nugent, 98 R.I. 56, 58, 199 A.2d 722, 723 (1964) ("The constitution did not purport to create such an office but recognized it as existing and provided for continuance of the powers and duties exercised by its occupant prior to the adoption of the constitution."); see also Orabona v. Linscott, 49 R.I. 443, 445, 144 A. 52, 53 (1928) ("Under the Constitution and by long-established practice great power and responsibility for the enforcement of the criminal laws are lodged in the Attorney General.").


    Those attorneys general who are vested with authority pursuant to the common law (as is the case in Rhode Island) possess a wide variety of powers. See 7 Am.Jur.2d Attorney General § 6 at 11 (2007) ("Under the common law, the attorney general has the power to bring any action which he or she thinks necessary to protect the public interest, a broad grant of authority which includes the power to act to enforce the state's statutes. In the exercise of these common-law powers, an attorney general may not only control and manage all litigation on behalf of the state, but may also intervene in all suits or proceedings which are of concern to the general public."); see also State of Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266, 268-69 (5th Cir.1976) ("[The duties and powers of attorneys general] are not exhaustively defined by either constitution or statute but include all those exercised at common law. * * * [Accordingly, the attorney general] typically may exercise all such authority as the public interest requires. And the attorney general has wide discretion in making the determination as to the public interest.").


    [46] See, e.g., In re House of Representatives (Special Prosecutor), 575 A.2d 176, 179 (R.I. 1990) ("A key aspect of the Attorney General's role as public prosecutor is the element of discretion. It is well settled in this state that the Attorney General is the only state official vested with prosecutorial discretion.") (internal quotation marks omitted); Suitor, 98 R.I. at 60, 199 A.2d at 724 ("[T]his court recognizes that the attorney general, in acting to enforce the * * * law, performs acts which require an exercise of judgment or discretion * * *."); see also State v. Rollins, 116 R.I. 528, 533, 359 A.2d 315, 318 (1976).


    [47] Although the Fifth Circuit in the cited case was discussing the role of the Attorney General in another state, we consider its descriptive words to be equally applicable to the Attorney General of Rhode Island.


    [48] We emphasize that this opinion's exposition of our present view concerning contingent fee agreements should be understood as being strictly limited to the context of civil litigation. We explicitly refrain from extending such views to the criminal context. Indeed, we are unable to envision a criminal case where contingent fees would ever be appropriate — even if they were not explicitly barred, as is the case in this jurisdiction. See Article V, Rule 1.5(d)(2) of the Supreme Court Rules of Professional Conduct ("A lawyer shall not enter into an arrangement for, charge, or collect * * * a contingent fee for representing a defendant in a criminal case."); see also ABA Model Code DR 2-106(C) (same); Peter Lushing, The Fall and Rise of the Criminal Contingent Fee, 82 J. Crim. L. & Criminology 498, 500 (1991) ("Contingent fees for criminal defense attorneys * * * are almost uniformly considered unethical and illegal."); F.B. MacKinnon, Contingent Fees for Legal Services: A Study of Professional Economics and Responsibilities 52 (1964) ("The third area of practice [in addition to domestic relations and government lobbying] in which the use of the contingent fee is generally considered to be prohibited is the prosecution and defense of criminal cases.").


    We are cognizant of the fact that the legal construct known as public nuisance has some historical relationship with the criminal law and may, even today, sometimes be the basis for a criminal prosecution. See, e.g., People ex rel. Clancy, 218 Cal.Rptr. 24, 705 P.2d at 353. Significantly, however, the case presently before us is completely civil in nature.


    [49] See Peter Karsten, Enabling the Poor to Have Their Day in Court: The Sanctioning of Contingency Fee Contracts, A History to 1940, 47 DePaul L. Rev. 231 (1998) (discussing, in a particularly scholarly manner, the early history of contingent fee agreements).


    [50] We pause to note that the propriety vel non of contingent fee agreements in the public sector is a much controverted and still developing area of the law. See, e.g., People ex rel. Clancy, 218 Cal.Rptr. 24, 705 P.2d at 351-52 (holding that the contingent fee arrangement between the city government and outside counsel was improper); County of Santa Clara v. Superior Court, 161 Cal.App.4th 1140, 74 Cal.Rptr.3d 842, 853 (2008) (stating that the just-cited decision of the Supreme Court of California in Clancy "does not bar the public entities from engaging private counsel under a contingent fee arrangement to assist in [public nuisance] litigation, so long as the public entities' in-house counsel retain control over all decision-making"); State v. Hagerty, 580 N.W.2d 139, 147-48 (N.D.1998) (holding that the attorney general of that state possessed the authority to employ special assistant attorneys general on a contingent fee basis); Exec. Order No. 13433, 72 Fed. Reg. 28441 (May 16, 2007) (barring federal agencies from employing lawyers on a contingent fee basis in all instances); Mark A. Behrens & Andrew W. Crouse, The Evolving Civil Justice Reform Movement: Procedural Reforms Have Gained Steam, But Critics Still Focus on Arguments of the Past, 31 U. Dayton L. Rev. 173, 182-83 (2006) (noting that, as of that time, seven states (Colorado, Connecticut, Kansas, Minnesota, North Dakota, Texas, and Virginia) had adopted legislation that regulates the manner in which their respective attorneys general may enter into contingent fee agreements); Valerie Jablow, Governments and Tort `Reformers' Clash Over the Hiring of Private Lawyers, 43 Trial 12 (Aug. 2007).


    We have concluded that the reasoning of the Supreme Court of California in Clancy is distinguishable from the case at bar for the reasons set forth in City and County of San Francisco v. Philip Morris, Inc., 957 F.Supp. 1130, 1135 (N.D.Cal.1997) and in County of Santa Clara, 74 Cal.Rptr.3d at 848-53.


    Given the continuing dialogue about the propriety of contingent fee agreements in the governmental context, we expressly indicate that our views concerning this issue could possibly change at some future point in time.


    [51] There is wisdom in the ancient maxim: "De minimis non curat lex." (The law does not concern itself with trifles.) In that vein, we recognize that, in the course of litigation in which contingent fee counsel is involved, certain decisions of the "de minimis" or ministerial variety will from time to time have to be made. As to who should make such relatively petty decisions, pragmatism rather than rigidity should be the watchword. See Peak v. United States, 353 U.S. 43, 46, 77 S.Ct. 613, 1 L.Ed.2d 631 (1957) ("[C]ommon sense often makes good law."). Nevertheless, when there is doubt as to who should make a particular decision, the "close calls" should be made in favor of the decisional authority of the Attorney General.


    [52] We would caution that the above-enumerated limitations are not exhaustive; the presence of such limitations in a particular contingent fee arrangement is not a guarantee that that agreement will pass muster. The issue of the Attorney General's entering into contingent fee agreements is at this point in time very much terra incognita, and careful review on a case-by-case basis will be required.


    [53] In support of their argument, defendants have pointed to G.L.1956 § 35-6-7, which provides in pertinent part as follows:


    "Every clerk, officer, or other person who * * * shall neglect or refuse to pay into the state treasury any money belonging to the state, at the time when the money ought to be paid, shall forfeit thrice the amount of the money so withheld or not paid, to be recovered in an action of debt, in the name of the general treasurer, for the use of the state."


    The defendants have also directed this Court's attention to G.L.1956 § 35-4-2 and § 35-4-4.


    The relevant portion of § 35-4-2 provides:


    "All revenue of the state of whatever character shall be paid into the hands of the general treasurer and credited to the general funds of the state * * *."


    Section 35-4-4 provides:


    "All moneys due to the state shall be paid to the general treasurer, who shall be responsible for the safekeeping and proper disbursement thereof according to law."


    [54] As we emphasize below, there is nothing automatic about such an equitable lien. Judicial oversight concerning attorneys' fees continues to be a matter of importance, as it historically has been.


    [55] Although it is of no real relevance to the legal principles that the Vermont opinion so well articulates, it is fascinating to note the historical context of Button's Estate v. Anderson, 112 Vt. 531, 28 A.2d 404 (1942). It appears that in 1932, the Governor of Vermont retained two nongovernmental attorneys "to take charge of, prosecute and endeavor to collect and recover from the government of the United States the claim of the State of Vermont for expenditures for military purposes in the war of 1812-1815 with Great Britain." Id. at 405 (emphasis added). One cannot help but recall the famous remark by one of William Faulkner's characters: "The past is never dead. It's not even past."


    [56] The fact that, in Rhode Island, the Attorney General is a constitutional officer militates against any suggestion that, in a contingent fee situation, the gross amount of damages recovered must be deposited in the General Treasury with the proper contingent fee to be paid only thereafter upon a vote of appropriation in the General Assembly. Such a regime would accord insufficient respect to the Attorney General's status as a constitutional officer.


    [57] Pursuant to Rule 1.5 of the Rules of Professional Conduct, an attorney's fee must be reasonable; any fee, including a contingent fee, is subject to oversight by the courts to ensure that a particular fee or fee agreement is, in fact, reasonable. That Rule sets forth a non-exclusive list of factors that a court must consider when determining whether or not an attorney's fee is reasonable.


    [58] We note once again that the Supreme Court Rules of Professional Conduct look with approval upon contingent fee agreements in some contexts. See Rule 1.5.

  • 2 State Attorney General Actions, the Tobacco Litigation and the Doctrine of Parens PatriaeLitigation

    Richard Ieyoub and Theodore Eisenberg, 74 Tulane Law Review 1859 (edited)

    Draft of February 23, 2000

    State Attorney General Actions, the Tobacco Litigation, and the Doctrine of Parens Patriae

    Richard P. Ieyoub* & Theodore Eisenberg**

    Table of Contents

    I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

    II. Parens Patriae Actions and the Interests They Protect . . . . . . . . . . . . . . . 5 A. Overview of the Doctrine of Parens Patriae . . . . . . . . . . . . . . . . . . . . . . 5
    B. Sovereign Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
    C. Development of the Concept of Quasi-Sovereign Interests . . . . . . . . . . . 10
    D. Quasi-Sovereign Interests Include Health, Safety, and Welfare . . . . . . . . 14

    III. Parens Patriae Doctrine in State Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

    A. Louisiana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

    1. The Attorney General’s State Constitutional Authority to Bring Parens Patriae . . . . . . . . . . . . . 19
    2. Louisiana Case Law Recognizes Parens Patriae Actions . . . . . . 21

    B. Other States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

    IV. The Benefits and Limits of Parens Patriae Principles . . . . . . . . . . . . . . . . . 25

    A. Authority of the State and the Attorney General to Act . . . . . . . . . . . . . . 26
    B. Limiting the Scope of Defenses and Statutory Preemption Claims . . . . . . 26
    C. Monetary Relief is Available in Parens Patriae Actions . . . . . . . . . . . . . 30
    D. The Limits of Parens Patriae Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . 31

    1. Prudential Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
    2. Practical Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
    3. Legal Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

    V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

    I. Introduction

    The Attorneys General litigation against the tobacco industry broke ground on several fronts. The scope of interstate Attorney General cooperation was unprecedented. The size of the settlement was unprecedented. Obtaining such massive relief against a previously undefeated litigant was unprecedented.

    The impact of the tobacco litigation transcended the states’ own cases. The shift in public and juror attitude towards an industry was also unprecedented. Before the states’ litigation, the tobacco industry had not lost a smoking case[1] and plaintiffs’ attorneys polling data showed that prevailing before juries would be difficult.[2] After the settlement, the industry suffered major trial defeats in California,[3] Oregon,[4] and Florida.[5] Whether those plaintiff victories survive after appeal remains to be seen. But these losses, against a nearly perfect prior trial record, suggest that the states’ litigation affected private cases. If private litigants, the federal government, foreign countries,[6] or others do succeed against the tobacco industry it will be in part because of the paradigm shift in attitude towards the industry resulting from the state litigation brought by the Attorneys General.

    Several factors made this litigation special and so especially threatening to the tobacco industry. Part of the story rests in the quality, resources, and risk-taking of Attorneys General and of the private lawyers representing the states. The tobacco industry not only faced the legal authority of states, it knew that these private lawyers, unlike those the industry had tried to bankrupt before, would be difficult to drive away through delaying tactics and other maneuvers designed to break adversaries. Part of the story rested in the ability of these attorneys to provide protection to the whistle blowers whom the industry sought to vilify, as fictionalized in the movie, “The Insider.” Part of the story rested in the industry’s fear that Louisiana’s direct action against the tobacco industry’s insurers would ultimately pit the insurance industry against the tobacco industry.[7]

    Much of the story rested in the fact that the Attorneys General acted in concert. The pressure of one state alone could be resisted. But when Mississippi, Florida, West Virginia, Massachusetts, and Louisiana acted jointly in March 1996 to secure the first Liggett settlement, the power of joint action was established. That settlement opened access to tobacco industry documents, secured Liggett’s cooperation, and encouraged many more states to file actions during the next year. By June 1997, a national settlement was reached, and the Master Settlement Agreement (“MSA”) reached inNovember1998 followed from it.

    Most of this is now reasonably well known. What may not be so well known, but is especially apropos of this symposium, are the details of the legal theories that some states relied on. For it is these legal theories, together with the precedent of concerted Attorney General action, that have the greatest implications for joint action on other fronts. These theories varied from state to state and would be revealed at different stages of the litigation, as dictated by local variation in pleading rules. In Louisiana, for example, the legal theories one relies on need not be stated in the petition.[8]

    Although the MSA terminated the litigation before Louisiana’s legal theories were fully tested, some of the theories have implications beyond the tobacco litigation. Of particular importance is the Louisiana’s legal team’s application of the theory of parens patriae to the tobacco litigation. That theory may prove to be useful and important in the other kinds of Attorney General actions we are discussing today and in actions not yet contemplated. The State of Louisiana’s Petition for Damages against the tobacco industry contained several causes of action that would be available to any litigant. The state’s parens patriae theory is uniquely available to the state.

    We believe that Louisiana’s trial team developed the theory of parens patriae, as applied to the tobacco litigation, to a degree beyond that of any other state. It is a theory that plainly concerned the tobacco industry because the MSA between the industry and the states expressly covers parens patriae actions.[9] It is that theory that I wish to discuss as part of this symposium. This is not the place to argue that the particulars of Louisiana’s parens patriae theory would have prevailed in the tobacco litigation. The states’ litigation with the industry is over. But the principles developed and precedents considered in shaping the parens patriae doctrine for the tobacco litigation have important implications for other potential Attorney General actions.

    Part II gives a brief overview of the doctrine of parens patriae and then discuss its doctrinal background and scope in greater detail. Part III shows that parens patriae principles are accepted by state courts. Part IV addresses the specific benefits to the state of using parens patriae doctrine in the context of the tobacco litigation. It also sketches limitations on uses of the doctrine.

    II. Parens Patriae Actions and the Interests They Protect

    A. Overview of the Doctrine of Parens Patriae

    Astate’s interests that may suffer damages can be sovereign, quasi-sovereign, or proprietary. As explained more fully below, the state’s sovereign interest is its interest in seeing that its laws are obeyed and enforced. Behavior that violates criminal laws, civil laws, or other regulatory provisions compromises the very sovereignty of the state and can be the subject of a civil action brought in the state’s name. But the state does more than merely enforce its laws. The state exists to “promote the health, safety. . . and welfare of the people.”[10] A state’s quasi-sovereign interests include its interest in its citizens’ health, safety, and welfare as well as in a healthful environment. A state’s proprietary interests are those that the state asserts on its own behalf as might any other legal entity.

    Actions to vindicate states’ sovereign and quasi-sovereign interests are sometimes referred to as parens patriae actions,[11] though the Latin label is not always used. [12] Parens patriae literally means “parent of the country.” Whatever the label, a state may recover costs or damages incurred because of behavior that threatens the health, safety, and welfare of the state’s citizenry. In the tobacco litigation, for example, the state’s duty to protect the public health, safety, and welfare is part of what led it to act against the health hazard created by the tobacco industry and the consequences of that hazard.

    Everyone has an ongoing duty to refrain from impinging the state’s sovereign and quasi-sovereign interests. These interests are only infrequently the object of civil litigation. This is probably because, fortunately, breaches of duty on a scale that warrants civil state involvement are rare. Parens patriae actions are not necessarily appropriate for isolated acts of misbehavior and harm. Because parens patriae interests are infrequently litigated, this part presents the background and scope of parens patriae actions and the interests they protect. Understanding the nature and scope of the state’s interests in parens patriae cases is critical to understanding the full implications of the doctrine in future cases.

    American courts uniformly recognize a state’s authority to sue, as parens patriae, to vindicate the state’s and its citizens’ interests. Viewed as a parens patriae action, the theory of many possible Attorney General cases, including the tobacco cases, is simple. The state alleges misbehavior by defendants that harmed the state’s sovereign and quasi-sovereign interests.[13] These interests include the state’s interest in enforcement of its civil and criminal laws and its interest in protecting and vindicating the health, safety, and welfare of its people. In the tobacco cases, these interests are separate from the state’s interest in recovering its medical costs, though the state’s vast tobacco-related medical costs might have assisted in measuring the minimum harm the industry imposed on the state.

    Parens patriae doctrine in the United States generally follows the same principles in federal and state courts. State court cases discussing parens patriae regularly rely on federal precedents.[14] Federal doctrine is therefore a natural starting place for describing parens patriae doctrine.

    The Supreme Court reviewed parens patriae’s modern history in Alfred E. Snapp & Son, Inc.[15] In that case, Puerto Rico sought to bring suit in its capacity as parens patriae against defendants for violations of federal law. Puerto Rico sued numerous individuals and companies engaged in the apple industry in Virginia. The complaint alleged that the defendants had violated federal statutes and regulations by failing to provide employment for qualified Puerto Rican migrant farm workers, by subjecting those Puerto Rican workers that were employed to working conditions more burdensome than those established for temporary foreign workers, and by improperly terminating employment of Puerto Rican workers. Puerto Rico alleged that this discrimination against Puerto Rican farm workers deprived “the Commonwealth of Puerto Rico of its right to effectively participate in the benefits of the Federal Employment Service System of which it is a part” and thereby caused irreparable injury to the Commonwealth’s efforts “to promote opportunities for profitable employment for Puerto Rican laborers and to reduce unemployment in the Commonwealth.”[16] Puerto Rico’s action prompted the Supreme Court to review the entire line of parens patriae cases.

    B. Sovereign Interests

    The Court stated that, to have parens patriae standing, the state must assert an interest related to its sovereignty. It stated that an “easily identified” sovereign interest consists of “the exercise of sovereign power over individuals and entities within the relevant jurisdiction--this involves the power to . . . enforce a legal code, both civil and criminal . . ..”[17] Thus, the state’s power to enforce civil and criminal codes is an interest that may be protected through parens patriae actions.[18]

    Parens patriae standing cannot be based on two other interests, which the Court calls (1) proprietary interests and (2) private interests pursued by the state as a nominal party.

    Not all that a State does, however, is based on its sovereign character. Two kinds of non-sovereign interests are to be distinguished. First, like other associations and private parties, a State is bound to have a variety of proprietary interests. A State may, for example, own land or participate in a business venture. As a proprietor, it is likely to have the same interests as other similarly situated proprietors. And like other such proprietors it may at times need to pursue those interests in court. Second, a State may, for a variety of reasons, attempt to pursue the interests of a private party, and pursue those interests only for the sake of the real party in interest. Interests of private parties are obviously not in themselves sovereign interests, and they do not become such simply by virtue of the State's aiding in their achievement. In such situations, the State is no more than a nominal party. [19]

    The tobacco litigation plainly did not involve assertion by the state of interests ineligible for parens patriae protection. The state did not seek relief as the proprietor of any enterprise. Nor did the state pursue the interests of private parties “only for the sake of the real party in interest.” Any recovery by the state in the tobacco litigation would not inure directly to the benefit of private interests. And the state’s health, safety, and welfare based reasons for bringing an action against tobacco manufacturers are obvious.

    C. Development of the Concept of Quasi-Sovereign Interests

    In addition to sovereign interests, the Court recognizes a class of state interests as being “quasi-sovereign.” These, too, can support parens patriae actions, but what counts as a “quasi-sovereign” interest is less clear than what counts as a sovereign interest. Quasi-sovereign interests “are not sovereign interests, proprietary interests, or private interests pursued by the State as a nominal party.”[20]

    The Court has developed the concept of quasi-sovereign interests through example and counter-example rather than through deductive reasoning. Quasi-sovereign interests consist of a set of interests that the state has in the well-being of its populace. “A quasi-sovereign interest must be sufficiently concrete to create an actual controversy between the State and the defendant. The vagueness of this concept can only be clarified by turning to individual cases.”[21]

    In Louisiana v. Texas,[22] Louisiana unsuccessfully sought to enjoin a quarantine maintained by Texas officials, which had the effect of limiting trade between Texas and the port of New Orleans. The Court labeled Louisiana’s interest as that of parens patriae, and distinguished it from the state’s sovereign and proprietary interests:

    Inasmuch as the vindication of the freedom of interstate commerce is not committed to the State of Louisiana, and that State is not engaged in such commerce, the cause of action must be regarded not as involving any infringement of the powers of the State of Louisiana, or any special injury to her property, but as asserting that the State is entitled to seek relief in this way because the matters complained of affect her citizens at large. [23]

    Although Louisiana was denied relief, a line of cases developed in which states were permitted to represent the interests of their citizens in enjoining public nuisances, including discharge of sewage,[24] flooding,[25] water pollution,[26] diversion of water, [27] and air pollution.[28]

    In the first of these cases, Missouri v. Illinois,[29] the Court expressly tied parens patriae standing to protecting the health and comfort of a state’s citizens. “[I]t must surely be conceded that, if the health and comfort of the inhabitants of a State are threatened, the State is the proper party to represent and defend them.”[30] In Georgia v. Tennessee Copper Co.,[31] a state’s quasi-sovereign interest was extended beyond the general concepts of the health and comfort of its citizens to specifically include interests in the land on which they reside and in the air that they breath. “[T]he State has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.”[32]

    The Court has stated that these early nuisance cases were premised on the threat of injury to the public health and comfort. After surveying many parens patriae cases, the Court summarized the doctrine as follows:

    This summary of the case law involving parens patriae actions leads to the following conclusions. In order to maintain such an action, the State must articulate an interest apart from the interests of particular private parties, i.e., the State must be more than a nominal party. The State must express a quasi-sovereign interest. Although the articulation of such interests is a matter for case-by-case development--neither an exhaustive formal definition nor a definitive list of qualifying interests can be presented in the abstract--certain characteristics of such interests are so far evident. These characteristics fall into two general categories. First, a State has a quasi-sovereign interest in the health and well-being-- both physical and economic--of its residents in general. . . . [33]

    Inclusion of public health interests is all that is necessary for purposes of many possible Attorney General cases, but the interests qualifying as quasi-sovereign interests have been further extended. “[P]arens patriae interests extend well beyond the prevention of such traditional public nuisances.”[34] In Pennsylvania v. West Virginia,[35] Pennsylvania was a proper party to represent its residents’ interests in maintaining access to natural gas produced in West Virginia:

    The private consumers in each State . . . constitute a substantial portion of the State's population. Their health, comfort and welfare are seriously jeopardized by the threatened withdrawal of the gas from the interstate stream. This is a matter of grave public concern in which the State, as the representative of the public, has an interest apart from that of the individuals affected. It is not merely a remote or ethical interest, but one which is immediate and recognized by law. [36]

    The state’s quasi-sovereign interest in its citizens’ economic well-being was recognized in Georgia v. Pennsylvania R. Co. [37] Georgia alleged that railroads had conspired to fix freight rates in a manner that discriminated against Georgia shippers in violation of the federal antitrust laws. The Court equated unlawful trade barriers with the pollution and nuisance cases:

    If the allegations of the bill are taken as true, the economy of Georgia and the welfare of her citizens have seriously suffered as the result of this alleged conspiracy. . . . [Trade barriers] may cause a blight no less serious than the spread of noxious gas over the land or the deposit of sewage in the streams.[38]

    The defendants’ alleged wrong “limits the opportunities of [the state’s] people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister States. These are matters of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected.”[39]

    D. Quasi-Sovereign Interests Include Health, Safety, and Welfare

    State and federal courts deem several state interests to be quasi-sovereign interests. These interests clearly include the health, welfare, and safety of the State’s citizens.

    Georgia v. Tennessee Copper Co.,[40] shows that, even early in the development of parens patriae doctrine, concerns about pollution in parens patriae cases are, quite naturally, instances of more general concerns about health. The State of Georgia alleged that a Tennessee company was emitting polluting chemicals that were harming Georgia’s interests. Georgia owned little of the affected lands but that did not preclude the existence of a cause of action. In an opinion written by Justice Oliver Wendell Holmes, Jr., the Court stated that the state had established that a private company’s industrial pollutants “threaten damage on so considerable a scale to the forests and vegetable life, if not to health, within the plaintiff state, as to make out a case . . ..”[41]

    Justice Holmes’ reference to “health” is made in a context that establishes health as an interest that the state may clearly defend through parens patriae actions. If harm to “the forests and vegetable life” could be defended through such actions, it followed, a fortiorari, that health could be protected by parens patriae actions. Thus, although pollution often does aesthetic damage and is a common trigger for parens patriae actions, the underlying reason for recognizing causes of action against polluters is because pollution threatens the health and safety of the citizenry.

    The state’s interest in protecting its environment is either part of its greater interest in protecting the health and safety of its citizenry or a separable interest that the state may protect. State and federal courts recognize states’ authority to sue as parens patriae for many threats to public health, safety, and welfare. These include damage to coastal or harbor waters and marine life,[42] discharge of sewage into public waters,[43] the diverting of water from an interstate stream,[44] changes in drainage which increase the flow of water in an interstate stream,[45] the threat of being forced to accept low-level radioactive waste,[46] refusal of medical clinics to provide sign language interpreters at medical examinations of deaf patients,[47] schemes constituting common law fraud,[48] and restraints on the commercial flow of natural gas.[49]

    States thus may sue, on behalf of their citizenry, for damages to the environment, damages to the health, safety, and welfare of their residents, damages to identifiable groups, and economic harms.

    Although many states filed actions against the tobacco industry only one tobacco case expressly analyzes a state’s authority, as sovereign, to maintain a cause of action for harm to the health, safety, and welfare of its people. That case sustained the state’s authority. In the Texas tobacco case, federal Judge David Folsom posed the question “whether the State could maintain this action [against the Defendants] at common law in the absence of any statutory provision.”[50] Relying on Alfred L. Snapp & Son, Inc., supra, Judge Folsom concluded “that the State could bring such an action.”[51] Judge Folsom first noted that the Supreme Court had approved actions by states to protect quasi-sovereign interests and that these “interests can relate to either the physical or economic well-being of the citizenry.”[52] He then found that the state had a sufficient interest to maintain an action in its quasi-sovereign capacity.

    First, it is without question that the State is not a nominal party to this suit. The State expends millions of dollars each year in order to provide medical care to its citizens under Medicaid. Furthermore, participating in the Medicaid program and having it operate in an efficient and cost effective manner improves the health and welfare of the people of Texas. If the allegations of the complaint are found to be true, the economy of the State and the welfare of its people have suffered at the hands of the Defendants. . . . It is clear to the Court that the State can maintain this action pursuant to its quasi-sovereign interests found at common law. [53]

    Judge Folsom’s ruling has implications for other Attorney General actions. He held that a defendant’s alleged wrongdoing would give rise to a viable cause of action absent any statutory authorization. The state’s quasi-sovereign interests, standing alone, give it authority to prosecute an action.

    III. Parens Patriae Doctrine in State Courts

    The parens patriae principles developed primarily in federal court litigation and approved by the Supreme Court have been endorsed by the states. For obvious reasons, we discuss Louisiana’s approach to parens patriae doctrine in greater detail than that of other states.

    A. Louisiana

    The Louisiana Constitution authorizes the Attorney General to bring actions asserting the State’s parens patriae interests. Louisiana case law recognizes this authority.

    1. The Attorney General’s State Constitutional Authority to Bring Parens Patriae Actions

    The Attorney General’s authority to bring parens patriae actions stems from Louisiana’s constitutional text. Article IV, § 8 states, in relevant part:

    There shall be a Department of Justice, headed by the attorney general, who shall be the chief legal officer of the state. The attorney general shall be elected for a term of four years at the state general election. . . .

    As necessary for the assertion of any right or interest of the state, the attorney general shall have authority (1) to institute, prosecute, or intervene in any civil action or proceeding; (2) upon the written request of a district attorney, to advise and assist in the prosecution of any criminal case; and (3) for cause, when authorized by the court which would have jurisdiction and subject to judicial review, (a) to institute, prosecute, or intervene in any criminal action or proceeding, or (b) to supersede any attorney representing the state in any civil or criminal action.

    The constitution explicitly and implicitly vests the Attorney General with broad authority to conduct litigation on behalf of the State. The constitution emphasizes the Attorney General's independent authority to conduct litigation by providing for direct election of the Attorney General, by designating the Attorney General to be the State's chief legal officer, and by vesting in the Attorney General authority to enforce the State's laws and to represent the State.

    Most importantly, the constitution’s text expressly authorizes the Attorney General “to institute” a “civil action” “as necessary for the assertion of any right or interest of the state.” The sweep of the Attorney General’s litigation authority could hardly be broader. Article IV's text and structure also show that the Attorney General’s power to institute civil proceedings to vindicate the State’s rights is among his broadest powers. His power to initiate civil proceedings is probably limited only by his good faith, his discretion, express legal constraints, or behavior that would be contrary to public policy. This broad power to initiate civil proceedings is a direct logical inference from Article IV’s text. The Attorney General’s authority to intervene in criminal proceedings, or to supersede an attorney who has initiated a civil or criminal action, is limited by subparagraphs (2) and (3), quoted above. His power to institute civil legal proceedings on the State’s behalf is not so limited.

    Louisiana’s Supreme Court recognizes the Attorney General’s broad discretion to act for the State in civil cases. In State v. Texas Co.,[54] the defendant questioned the Attorney General’s authority to bring an action to cancel a mineral lease because the legislature had vested the Mineral Board with full supervision over all mineral leases. The defendant thus argued for an implied limitation on the Attorney General’s authority to represent the State. The court rejected the argument, stating:

    The Attorney General has unquestionably the right to file a suit in the name of the State and he is not required to obtain the permission of the Governor or any other executive or administrative officer or board in order to exercise it. This power and duty is inherent in him in the nature of things and has been specially charged to him by the people themselves in the Constitution.[55]

    Since the Attorney General may bring an action to vindicate any interest of the State, the Attorney General may bring actions on behalf of the State as parens patriae. Indeed, if the Attorney General cannot bring such actions, then no State official appears to have such authority.

    2. Louisiana Case Law Recognizes Parens Patriae Actions

    Louisiana’s courts both recognize the principles of parens patriae actions developed by the U.S. Supreme Court and recognize the Attorney General’s authority to bring parens patriae actions.[56] State v. Bordens, Inc., [57] involved a parens patriae action by the Attorney General based on antitrust violations. The court recognized the Attorney General’s authority to proceed as parens patriae. In doing so, the court recognized parens patriae actions as protecting “quasi-sovereign interests” (in that case the general economy of the State) and referred to Alfred L. Snapp and Son Inc., discussed supra, a leading U.S. Supreme Court case describing the doctrine of parens patriae.[58] In State v. Classic Soft Trim, Inc.,[59] the court recognized the Attorney General’s capacity to proceed as parens patriae under the Louisiana Unfair Trade Practices and Consumer Protection Law (“LUTPA”).[60]

    Even when Louisiana courts deem the state not to have a parens patriae cause of action based on a particular legal theory, they recognize the State’s authority to sue as parens patriae. In State v. Time, Inc.,[61] the state sued Time, Inc. for defamation. The action was brought on the state’s “own account and for account of its citizens . . ..” [62] Although the court decided that the state is not a person for purposes of defamation law, the court recognized that the state, “as Parens patriae, is empowered to bring certain types of actions on behalf of all the people.”[63] Since a state could not be libeled, however, it had no interest distinct from that of its citizens.[64]

    B. Other States

    In State of Minnesota v. Ri-Mel, Inc.,[65] the state alleged wrongdoing by health clubs and their owners. In approving the state’s standing as parens patriae, the state appellate court stated:

    Although there is no express statutory authority for the attorney general’s action for restitution on behalf of injured club members, common-law has recognized that under the doctrine of parens patriae a state may maintain a legal action on behalf of its citizens, where state citizens have been harmed and the state maintains a quasi-sovereign interest. State of Minnesota v. Standard Oil Co., 568 F. Supp. 556, 563 (D. Minn. 1983). It is also established that Minnesota has a quasi-sovereign interest in protecting the economic health of its citizens. Id.[66]

    The Minnesota court identified a factor supporting parens patriae actions not emphasized in the Supreme Court’s review of cases. Citing Minnesota v. Standard Oil Co.,[67] the court took into account the likelihood of successful lawsuits by individuals. The court viewed parens patriae actions as a way for the state to represent a group of harmed citizens whose individual harms might not lead them to bring an action.

    . . . Minnesota has an added incentive to bring the action as parens patriae to assure its citizens the full benefit of the legislation and . . . individuals with small overcharges would likely not avail themselves of their individual remedy because of the burden of pursuing the action. Minnesota has a similar incentive to bring an action on behalf club members as parens patriae, because the injured club members may not avail themselves of their remedy under the Club Contracts Act because of the economic burden of suing on a small claim. The clubs’ closings affected the economic interests of more than 16,000 citizens, and Minnesota does have a quasi-sovereign interest in protecting their economic health.[68]

    In Selma Pressure Treating Co., Inc. v. Osmose Wood Preserving Co. of America, Inc.,[69] the state alleged that defendants unlawfully disposed of hazardous waste. The court held that the state has a legally cognizable property interest in the waters of the state. The state court expressly relied on “a line of cases [that] recognize and protect the State’s parens patriae interest in the air, land and water of its territory.”[70] In Department of Environmental Protection v. Jersey Central Power and Light Co.,[71] a pollution action, the state court stated that, “Both parties agree that the State has an interest which gives it standing to sue under Parens patriae doctrine for injunctive relief from pollution in navigable waters which causes injury to fish.”[72] Although in many states, no case law directly address parens patriae authority to sue, we have found no state in which the principle of parens patriae has been deemed not to be a part of the state’s law.

    In summary, whether brought in state or federal court, the interest sought to be protected in a parens patriae action must differ from that of an ordinary owner or tort victim. The facts must show that the state has an interest “independent of and behind the titles of its citizens.”[73] The state must have an interest of its own and not merely be seeking “recovery for the benefit of individuals who are the real parties in interest.”[74] And the cases all involve behavior that adversely affect a substantial number of the state’s citizens.

    IV. The Benefits and Limits of Parens Patriae Principles

    The benefits of parens patriae doctrine must of course depend on the facts of particular cases. In the tobacco litigation, the state’s authority to sue in parens patriae was of potential importance for several reasons. These include establishing the Attorney General’s and the state’s authority to sue, limiting the scope of potential industry defenses and statutory preemption claims, and establishing an additional basis for monetary and injunctive relief. Whether these specific benefits assist attorneys general in future cases depends of course on the harms they seek to alleviate, the other legal theories available to them, and the defenses that may be available to potential defendants.

    A. Authority of the State and the Attorney General to Act

    In the tobacco litigation, the parens patriae theory strengthened the Attorney General’s claim to act on behalf of the state. In Louisiana’s case, the Attorney General’s authority to sue, independently of any authority to sue vested in other state agencies, was in issue.[75] The tobacco industry consistently asserted that the Attorney General lacked procedural capacity to sue because Medicaid law vested that right in other state agencies.[76] To the extent parens patriae actions assert harms to the state’s quasi-sovereign interests, as described above, the authority and obligation of the state’s chief legal officer to prosecute the action is strengthened. That officer is the natural state official to seek to vindicate rights touching upon a state’s sovereignty. The state in parens patriae asserts harms independent of the dollar costs of Medicaid.

    B. Limiting the Scope of Defenses and Statutory Preemption Claims

    Second, had the case not settled, the tobacco industry’s claim that any right to recovery flowed through the individual smokers themselves, and was not an independent right of the state, would have to be addressed. The Attorney General’s authority to sue also related to the strength of defenses the tobacco industry would present. To the extent parens patriae actions assert harms to the state qua state, defenses that relate to individuals’ actions are unavailing. If defendants commit breaches of legal duties that harm a state’s quasi-sovereign interests, it is no defense that individuals who might have also suffered may have engaged in behavior that precluded their individual recovery.

    Third, due to the sovereign and quasi-sovereign interests at stake in parens patriae actions, courts are reluctant to infer preemption of parens patriae actions from the existence of other remedial legislation. Parens patriae actions are not necessarily precluded by the existence of specific statutory remedies. In Selma Pressure Treating Co., Inc. v. Osmose Wood Preserving Co. of America, Inc., supra, the court stated that parens patriae actions are not preempted by specific statutory remedies.

    This right of recovery [parens patriae] is not diminished by the coexistence of express statutory remedies where the legislation does not presume to preempt common law rights.[77]

    To the extent parens patriae actions vindicate sovereign and quasi-sovereign interests that differ from proprietary and private interests, there is little reason to infer denial of authority to bring parens patriae actions from the mere existence of other statutory remedies.

    Express preemption of actions to vindicate sovereign and quasi-sovereign interests normally is required.[78] The U.S. Supreme Court mandates that federal courts be extremely reluctant to interpret congressional enactments or constitutional requirements to interfere with states’ sovereign prerogatives. For example, in deciding whether federal statutes authorize suits against states in federal court, the Supreme Court has adopted a clear statement rule. The Court asks whether Congress has “unequivocally expresse[d] its intent to abrogate” state sovereign immunity.[79] And the Court finds that a state has waived its immunity only when it does so “by the most express language or by such overwhelming implication as [will] leave no room for any other reasonable construction.” [80]

    In the one tobacco case expressly discussing a parens patriae theory, the court found that the State’s parens patriae action was not supplanted by the Texas state Medicaid statutory remedy that defendants argued was exclusive. [81] In the Texas state tobacco litigation, Judge Folsom addressed the question “whether the State’s common law action has been supplanted by a statutory remedy that should be deemed exclusive.” [82] He stated that the “crux of the Defendants’ argument is that any common-law action the State may have had can no longer be pursued, because the Texas legislature has provided the State with its exclusive remedy” in a Texas Medicaid statute, § 32.033 of the Texas Human Resources Code.[83] The Texas federal court noted that this “principle derives from the rule of statutory construction expressio unius est exclusio alterius. In other words, if one thing is implied, it is implied to the exclusion of all others.” [84]

    The court concluded that applying expressio unius would frustrate, rather than promote the purpose of state and federal Medicaid recovery statutes.

    . . . the Defendants would have this Court direct that the State bring individual subrogation claims pursuant to § 32.033. Although this approach may be preferred in situations where a single tortfeasor inflicts a one-time harm against a single individual who receives Medicaid benefits, the practical consequence of the Defendants’ position would be to prohibit a state from ever instituting a suit that alleges a broad based harm to millions of citizens. It would be impractical, if not impossible, for the states to follow the mandates of the Medicaid statute’s reimbursement provisions, because proceeding on a claim-by-claim basis would be cost prohibitive and inefficient.

    . . . To prevent the State from proceeding in the present manner does not further the purpose of the Medicaid reimbursement provisions, rather it hinders it. To adopt the Defendants’ position, this Court would have to determine that Congress and the Texas legislature anticipated the reimbursement issues raised by this case, considered the existence of the State’s common law cause of action, and determined that a subrogation remedy would be the best way to proceed in all instances. This is too much to ask. The State’s position that the presence of a statutory right normally does not extinguish non-statutory rights is more consistent with the spirit of the reimbursement provisions of the Medicaid statute. [85]

    In the tobacco litigation, there would thus be a reduced basis for claiming that any Medicaid-based cause of action was the exclusive cause of action. This benefit of parens patriae theory could well apply in other contexts.

    C. Monetary Relief is Available in Parens Patriae Actions

    Parens patriae actions maybe brought for monetary relief as well as for injunctive relief.[86] Courts have rejected the argument that damages are not available in parens patriae actions.[87] When the Supreme Court has discussed the question of damages in parens patriae cases it has indicated that the Eleventh Amendment precludes a state from recovering monetary compensation from another state only when the monetary recovery will clearly be passed on to individual state citizens. [88]

    In a state tobacco case expressly discussing damages under a parens patriae-like theory, the court accepted that damages are available. In the Texas litigation, Judge Folsom clearly assumed that damages, to the extent proven, would be available to a state seeking to vindicate its quasi-sovereign interests. [89]

    D. The Limits of Parens Patriae Doctrine

    Deriving modern limits on parens patriae doctrine is difficult because most of the leading case authorities relating to parens patriae are not of recent vintage. The leading Supreme Court cases tend to date from the early 1900s. [90] It is not coincidence that cases addressing the authority of the state to sue in parens patriae followed closely after the industrialization of the United States. Spills into waterways, diversion of water, air pollution, and the like became regional issues in the early industrial era. These early actions in parens patriae can be viewed as one method of states controlling the effects of industrialization. It would take Congress decades to addressing these issues at the national level through measures such as the Clean Air Act.

    Active modern use of parens patriae principles by Attorneys General may be a consequence of the growth of the modern American consumer state. Unfair and deceptive practices (“UDAP”) laws are a key state weapon in the effort to protect consumers. But the modern consumer state, like the industrial state, includes groups seemingly beyond the reach traditional state regulation, such as UDAP laws, [91] and too powerful to be subject to federal regulation. For example, the tobacco industry resisted federal and state regulation through massive lobbying as well as lack of candor about the health risks of smoking. Since this modern use of parens patriae is in its early stages it may be premature to anticipate what limits should be imposed on its uses. The doctrine likely played a role in bringing about the successful tobacco litigation settlement but that settlement pretermitted the opportunity for courts to articulate the doctrine’s limits.

    So the guidelines sketched below for exercise of parens patriae power are necessarily imprecise. In assessing the limits of parens patriae principles, three kinds of limitations are worth separating: prudential limits, practical limits, and legal limits.

    1. Prudential Limits

    The power of the state can be daunting. It literally extends to the power over life and death. The first and most important check on overextending that power must come from the prudential acts of the state officials who are authorized to exercise state power. In determining whether to exercise parens patriae power, state officials should take into account two principal prudential factors.

    First, actions in parens patriae should be reserved for substantial and serious harm to the citizenry. Misdeeds directed against individuals or small groups usually do not require use of the doctrine. The tobacco litigation illustrates the kind of alleged massive harm that warrants action though not every instance of harm need be so overwhelming. Louisiana acted in parens patriae in the tobacco litigation because of the severe damages allegedly inflicted by the tobacco industry on the state’s sovereign and quasi-sovereign interests. The scope of the alleged wrong, and the extensiveness of the alleged harm inflicted, supported the state’s decision to initiate the litigation on its own behalf.

    Second, other available remedies and doctrines should be wanting or limited in some respect. The tobacco litigation is again illustrative. This was not a battle that individual citizens can or should be expected to fight, one-by-one, against an industry’s marketing, scientific, public relations, and legal armies. And the state’s suffering of harms independent of those suffered by individual smokers suggests that only action by the state could vindicate its interests.

    These prudential considerations vest substantial discretion in state law enforcement officials, and especially the Attorney General. But broad prosecutorial discretion is the norm in our legal system. Prosecutors’ decisions to initiate civil or criminal actions are virtually unreviewable. It should not be surprising that the Attorney General’s authority to prosecute state interests in parens patriae actions is similarly broad.

    2. Practical Limits

    If the tobacco litigation is a guide, an important practical limit to the use of parens patriae will be the willingness of states or Attorneys General to act in concert. However powerful one state’s use of parens patriae principle might be, the core lesson of the tobacco litigation is that states can be most effective when they act in concert. In hindsight it is easy to forget that the states did not always present such a united front against the tobacco industry. Only after the states were substantially united did serious settlement terms emerge.

    Few took the state actions seriously when there was only one or a handful of states suing the tobacco industry. Many skeptics included fellow Attorneys General who declined to file suit.[92] It was not until after the first Liggett settlement that concerted state action really begin to squeeze the tobacco industry. Before the first Liggett settlement, only six states, including Louisiana, had sued in over two years. The number grew to 22 in less than one year after the settlement. A set of local actions had been transformed into a truly national action. National settlements followed. A retrospective Wall Street Journal article reported that the “surprise 1996 settlement of five states” was “a turning point in the tobacco wars.”[93]

    3. Legal Limits

    Legal limits on parens patriae are foremost a question of state law. Within a state’s own courts, and subject to federal and state constitutional limitations, state legislatures can authorize as broad a scope for the use of parens patriae as they wish. And several kinds of state laws, including UDAP laws, can be viewed as statutory embodiments of parens patriae principles. [94] States have the corresponding power, at least through provisions in state constitutions, to limit assertions of that power or judicial recognition of such power.

    Assuming states choose to adhere to currently existing parens patriae case law, Part II presents the principal doctrinal limitations. As currently articulated, parens patriae actions require that the state not be acting in a proprietary capacity. When the state itself is a victim of tortious or contractual misconduct, it can directly vindicate its interests as fully as any other litigant. And states cannot be acting simply as enforcement agencies for small collections of private individuals. There must be a state interest beyond that of private parties to warrant a parens patriae action.

    The precise nature of such state interests has been left vague by the Supreme Court. As noted above, “The vagueness of this concept can only be filled in by turning to individual cases.”[95] Speculation about what interests will be viewed as supporting parens patriae actions in the future may not be fruitful. It suffices to note that the state’s interest in the health, safety, and welfare (including economic welfare) of its citizens supports such actions. This broad view of protected interests should support protecting nearly all interests that a state might reasonably seek to protect.

    V. Conclusion

    The states’ tobacco litigation revived use of an important power of state governments: civil actions brought in parens patriae to vindicate a state’s interests in the health, safety, and welfare of its citizens. The use of such actions is more than a century old and rests on an ample line of precedents.

    Although such actions are powerful, and uniquely available to governments, they are not a means by which states can avoid other important prerequisites to legal relief. In particular, there remains the requirement that defendants breach some legal duty that harms a state’s parens patriae interest.[96] Parens patriae doctrine helps articulate the state’s legal interests. It does not define the defendant’s legal duties. [97] Future state litigation relying on parens patriae doctrine must both attend the limits on parens patriae doctrine and understand the need for a breach of legal duties by potential defendants.

    [1] It is reported that plaintiffs won four of seven tobacco case trials tried after June 1998. Richard A. Daynard & Mark Gottlieb, Keys to Litigating Against Tobacco Companies, 35 TRIAL 18 (Nov. 1999) and previously had won only two trials of 813 filed claims against tobacco companies, with the two trial victories reversed on appeal. Erin Myers, Note, The Manipulation of Public Opinion by the Tobacco Industry: Past, Present, and Future, 2 J. HEALTH CARE L. & POL'Y 79 (1998).

    [2] Indeed, Mississippi’s critical first action was structured to avoid trial by jury, an issue finally resolved by the Mississippi Supreme Court.

    [3] Henley v. Philip Morris, Inc., No. 995172, 1999 WL 221076 (Cal. Super. Ct. Apr. 6, 1999), appeal pending.

    [4] Williams-Branch v. Philip Morris Inc., No. 9705-03957 (Cir. Ct., Multinomah Co., Ore. March 30, 1999), appeal pending. See Trapped by Their Own Records, NAT’L L. J., Feb. 28, 300, at C8.

    [5] Engle et al. v. R.J. Reynolds Tobacco Co. et al., No. 94-8273 CA 22 (Fl. Cir. Ct., 11th Jud. Dist., Dade Cty. July 7, 1999).

    [6] See Bob Van Voris, New Attack on Big Tobacco: Philip Morris Verdict May Be Small Compared with Union Fund Liability, NAT'L L.J., Feb. 22, 1999, at A1 (listing several foreign governments that have filed suit against the tobacco industry in U.S. courts).

    [7] E.g., Dan Lonkevich, Tobacco Cos. Offer Olive Branch to Insurers in Coverage War. (Insurance Coverage Related to Tobacco Litigation), 101 National Underwriter Property & Casualty- Risk & Benefits Management, No. 13 (March 31, 1997). The Master Settlement Agreement of November 23, 1998 (“MSA”) releases the tobacco industry’s insurers from liability. MSA § II(oo).

    [8] Whether a petition states a cause of action turns solely on construing the facts alleged in the petition. Montalvo v. Sondes, 637 So.2d 127, 131 (La. 1994); Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234 (La. 1993); Kuebler v. Martin, 578 So.2d 113 (La. 1991). There is no requirement that the petition contain a list of legal theories supported by the facts plead. “The court must accept the well pleaded allegations of fact as true, and the issue at the trial of the exception [of no cause of action] is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought.” Montalvo, 637 So.2d at 131.

    [9] MSA, supra note 7, at § II(pp)(2).

    [10] Preamble, La. Const. (1974).

    [11] E.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600, 102 S.Ct. 3260, 3265 (1982),

    [12] The doctrinal labels used to support States’ actions on behalf of their citizenry vary. Sometimes no doctrinal labels are used. E.g., Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S. Ct. 379 (1967) (cause of action for costs of cleanup). Sometimes the State’s action is framed as one brought by the trustee of property for the benefit of the public. State v. City of Bowling Green, 38 Ohio St. 2d 281, 313 N.E.2d 409 (Ohio 1974) (cause of action for damages to environment). Sometimes cases to protect the public are labeled actions brought under the State’s power as parens patriae. E.g., Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 102 S. Ct. 3260 (1982) (cause of action to protect economic interests of a class of workers); Maine v. M/V Tamano, 357 F. Supp. 1097 (D. Me. 1973) (cause of action for damages to environment).

    [13] “[J]udicial relief sometimes may be granted to a quasi sovereign state under circumstances which would not justify relief if the suit were between private parties . . ..” State of Florida v. Mellon, 273 U.S. 12, 16 (1927). But, in general, the cases involve misbehavior by defendants that likely would give rise to liability under some nuisance or other tort theory. And it “must appear that the state has suffered a wrong furnishing ground for judicial redress or is asserting a right susceptible of judicial enforcement.” Id. at 16-17.

    [14] E.g., State v. Bordens, Inc., 684 So.2d 1024, 1026 (La. App.4th Cir. 1996), writ denied, 690 So.2d 42 (1997) (citing Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 102 S.Ct.3260 (1982)).

    [15] 458 U.S. 592, 600, 102 S.Ct. 3260, 3265 (1982).

    [16] 458 U.S. at 597-99.

    [17] Id. at 601 (emphasis added).

    [18] The Court recognized a second sovereign interest of less relevance here--the demand for recognition from other sovereigns, which usually involves the maintenance and recognition of borders.

    [19] 458 U.S. at 601-02.

    [20] Id. at 602.

    [21] Id.

    [22] 176 U.S. 1 (1900).

    [23] Id. at 19.

    [24] Missouri v. Illinois, 180 U.S. 38 (1901); Wyoming v. Colorado, 259 U.S. 419 (1922).

    [25] North Dakota v. Minnesota, 263 U.S. 365 (1923).

    [26] New York v. New Jersey, 256 U.S. 296 (1921).

    [27] Kansas v. Colorado, 36 U.S. 46 (1907); Kansas v. Colorado, 185 U.S. 125 (1902).

    [28] Georgia v. Tennessee Copper Co., 36 U.S. 230 (1907).

    [29] 180 U.S. 38 (1901).

    [30] Id. at 241.

    [31] 36 U.S. 230 (1907).

    [32] Id. at 237.

    [33] 458 U.S. at 607 (emphasis added).

    [34] Id. at 605.

    [35] 262 U.S. 553 (1923).

    [36] Id. at 592.

    [37] 324 U.S. 439 (1945).

    [38] Id. at 450.

    [39] Id. at 450-451.

    [40] 36 U.S. 230 (1907).

    [41] Id. at 238-39 (emphasis added).

    [42] Maine v. M/V Tamano, 357 F. Supp. 1097 (D. Me. 1973); Maryland v. Amerada Hess Corp., 350 F. Supp. 1060 (D. Md. 1972); Department of Environmental Protection v. Jersey Central Power and Light Co., 336 A.2d 750 (Super. Ct. N.J. 1975), rev’d on other grounds, 351 A.2d 337 (N.J. 1976).

    [43] Missouri v. Illinois, 180 U.S. 38 (1901); New York v. New Jersey, 256 U.S. 296 (1921).

    [44] Kansas v. Colorado, 36 U.S. 46 (1907).

    [45] North Dakota v. Minnesota, 263 U.S. 365 (1923).

    [46] Nebraska v. Central Interstate Low-Level Radioactive Waste Commission, 834 F. Supp. 135, 1210-1211 (D. Neb. 1993), aff’d, 26 F.3d 77 (8th Cir.), cert. denied, 513 U.S. 987 (1994).

    [47] People v. Mid Hudson Medical Group, P.C., 877 F. Supp. 143, 147-148 (S.D.N.Y. 1995).

    [48] E.g., Alaska v. First National Bank of Anchorage, 660 P.2d 406, 421 (Alaska 1982) (collecting cases).

    [49] Pennsylvania v. West Virginia, 262 U.S. 553 (1923).

    [50] Memorandum Opinion and Order re Defendants’ Motions to Dismiss Counts 1-3 and Counts 4-17 of the State’s Second Amended Complaint, Sept. 8 1997, at 5, The State of Texas vs. The American Tobacco Co. et al., No. 5-96CV-91, E.D. Tex., Texarkana Div. [hereinafter Texas Order].

    [51] Id.

    [52] Id.

    [53] Id. 5-6.

    [54] 199 La. 846, 7 So.2d 161 (1942).

    [55] 199 La. at 850-51, 7 So.2d at 162.

    [56] State v. Bordens, Inc., 684 So.2d 1024 (La. App. 4th Cir. 1996), writ denied, 690 So.2d 42 (1997); State v. Classic Soft Trim, Inc., 663 So.2d 835 (La. App. 5th Cir. 1995), writ denied, 666 So.2d 669 (1996); State v. Time, Inc., 249 So.2d 328 (La.App. 1st Cir. 1971), writ denied, 252 So.2d 456 (1971) (recognizing validity of parens patriae actions but finding no cause of action for defamation).

    [57] 684 So.2d 1024 (La. App. 4th Cir. 1996), writ denied, 690 So.2d 42 (1997).

    [58] Id. at 1026.

    [59] 663 So.2d 835 (La. App. 5th Cir. 1995), writ denied, 666 So.2d 669 (1996).

    [60] 684 So.2d at 836 (rejecting defendants’ argument that “the State does not have interest in this litigation as parens patriae”).

    [61] 249 So.2d 328 (La. App. 1st Cir. 1971), writ denied, 252 So.2d 456 (1971).

    [62] Id. at 328.

    [63] Id. at 333 (quoting trial court opinion).

    [64] Id.

    [65] 417 N.W.2d 102 (Minn. App. 1987), review denied (1988).

    [66] Id. at 112.

    [67] 568 F. Supp. 556 (D. Minn. 1983).

    [68] 417 N.W.2d at 112.

    [69] 221 Cal. App.3d 1601, 1616, 271 Cal. Rptr. 596, 605 (Cal. App. 1990), review denied (1990).

    [70] 221 Cal. App.3d at 1617, 271 Cal. Rptr. at 605.

    [71] 336 A.2d 750 (Super. Ct. N.J. 1975), rev’d on other grounds, 351 A.2d 337 (N.J. 1976).

    [72] 336 A.2d at 391.

    [73] Georgia v. Tennessee Copper Co., 36 U.S. 230, 237 (1907).

    [74] Oklahoma v. Cook , 304 U.S. 387, 396 (1938).

    [75] It was also in issue in other states. In February 1996, one month before Louisiana’s filing, Mississippi Governor Kirk Fordice sued Mississippi Attorney General Mike Moore to stop the Mississippi suit. The action was not resolved in Attorney General Moore’s favor until March 13, 1997. In West Virginia, one of the four other states to precede Louisiana in filing, Governor W. Gaston Caperton sued West Virginia Attorney General Darrell McGraw to stop that state’s suit. TIME MAGAZINE, March 11, 1996.

    [76] Memorandum in Support of Exception of No Right of Action, April 18, 1997. This exception was rejected. Ruling of Judge Wilford D. Carter, Jan. 10, 1997. An interlocutory appeal of the matter was pending at the time of the MSA. Louisiana had prevailed on a similar issue in its action based on costs of asbestos abatement in public buildings. Ieyoub ex rel. Louisiana v. W.R. Grace & Co.- Conn., et al., No. 95-3722 (Dist. Ct., Calcasieu Parish May 12, 1997), writ denied.

    [77] 221 Cal. App.3d at 1618, 271 Cal. Rptr. at 606.

    [78] Cf. Article XII, § 13, La. Constit. of 1974 (prohibiting prescription against the State unless express exceptions exist).

    [79] E.g., Green v. Mansour, 474 U.S. 64, 68 (1985); Dellmuth v. Muth, 491 U.S. 223, 228 (1989).

    [80] Atascadero State Hospital v. Scanlon, 473 U.S. 234, 239-240 (1985) (quoting earlier cases). Twice in recent years the Supreme Court has overruled precedents that allowed actions to go forward against States. Seminole Tribe of Florida v. Florida, 116 S.Ct.1114 (1996) (overruling Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989); Welch v. Texas Department of Highways & Public Transport., 483 U.S. 468 (1987) (overruling Parden v. Terminal Railway, 377 U.S. 184 (1964)). Welch expressly based its holding on the absence of a clear statement from Congress to abrogate traditional state authority.

    [81] In some tobacco cases filed by states, courts have relied on state Medicaid statutes to limit causes of action to recover Medicaid costs. Iowa ex rel. Miller v. Philip Morris Inc., 577 N.W.2d 401 (Iowa 1998); State of Maryland v. Phillip Morris Inc., 1997WL540913, No.9612317/CL211487 (Circ. Ct., Baltimore Cty. May 21, 1997); McGraw et al. v. American Tobacco Company, et al., Civil Action No. 94-C-1707 (letter ruling of February 13, 1997) (West Virginia case). Unlike the Texas and Louisiana cases, these tobacco cases did not expressly put in issue the state’s common law right of action based on its quasi-sovereign interest in the health, safety, and welfare of its people. Only the Texas case expressly discusses such an interest.

    [82] Texas Order, supra note 50, at 6.

    [83] Id. at 6-7.

    [84] Id. at 7.

    [85] Id. at 9-10.

    [86] Maine v. M/V Tamano, 357 F. Supp. 1097 (D. Me. 1973); Maryland v. Amerada Hess Corp., 350 F. Supp. 1060 (D. Md. 1972). Maine v. M/V Tamano was cited with apparent approval by the Fifth Circuit in United States v. Dixie Carriers, Inc., 736 F.2d 180, 186 n.11 (5th Cir. 1984).

    [87] Hawaii v. Standard Oil Co. of California, 301 F. Supp. 982, 987 (D. Hawaii 1969), rev’d on other grounds, 431 F.2d 1282 (9th Cir. 1970), aff’d, 405 U.S. 251 (1972); Selma Pressure Treating Co., Inc. v. Osmose Wood Preserving Co. of America, Inc., 221 Cal. App.3d 1601, 1617, 271 Cal. Rptr. 596, 606 (Cal. App. 1990) (“Where confronted with the issue, the courts have accorded the State the right to seek money damages based upon such interest.”).

    [88] North Dakota v. Minnesota, 263 U.S. 365, 374-76 (1923).

    [89] Texas Order, supra note 50, at 17-18. Doubts about the availability of damages in parens patriae actions have arisen in cases in which the parens patriae action seeks monetary recovery not from an injury to the people of the state but only from specific injuries to specific individuals. Bachynsky v. State, 747 S.W.2d 868, 870 n.8 (Texas App. 1988), writ denied (1988).

    [90] Part II.C supra .

    [91] Though several state tobacco suits contain viable UDAP claims. See Minnesota ex rel. Humphrey v. Philip Morris, Inc., 551 N.W.2d 490 (Minn. 1996) (granting Blue Cross standing to sue tobacco defendants under consumer protection theories). But see Texas Order, supra note 50, at 22- 23.

    [92] The industry’s aggressive defense tactics against Attorneys General discouraged Colorado from filing at the time. Joan Beck, Deadly Defense: Tobacco Firms Ponder New Legal Strategy, DALLAS MORNING NEWS, Feb. 11, 1996. Wisconsin’s Attorney General stated that he would wait to see how the other states did before filing suit. Paul Norton, Doyle: Wait, See on Tobacco Suit, THE CAPITAL TIMES, Feb. 26, 1996. He stated:

    So we’ve made the decision to wait and see if these cases get through the preliminary stages, and to see how they develop before we really come to terms with a decision on whether or not we're going to invest this kind of money [in the litigation].
    New Hampshire’s Attorney General may have spoken for many of them when he said that New Hampshire could just sit it out and sign on when and if the states win. Norma Love, Associated Press Political Service, Democrats: New Hampshire Should Sue Tobacco Companies, Apr. 2, 1996, 1996WL 5375466. New Hampshire held off “because the other states are taking the lead.” According to that state’s Attorney General, “It isn't necessary to bring an action today. There's no reason to spend our resources when it's being competently handled by others.” Id. Ohio’s Attorney General volunteered, “Many of the legal theories being used in the lawsuits are untested and unproven.” Bob Van Voris, AGs’ Claims Mere Smoke? NAT’L L.J., Apr. 28, 1997, p. A1. In an 88 page report completed in October 1996, the Alabama Attorney General’s task force concluded that the legal arguments advanced by the state attorneys general are “at best weak and at worst bizarre.” William H. Pryor, Jr. et al., Report of the Task Force on Tobacco Litigation 5, Montgomery, Ala. (Oct. 2, 1996).

    [93] Dec. 15, 1998, p. B4.

    [94] E.g., The Louisiana Unfair Trade Practices and Consumer Protection Law (“LUTPA”),La. R.S. 51:1401 et seq. (“LUTPA”).

    [95] 458 U.S. at 602.

    [96] Note 13 supra.

    [97] The states’ tobacco litigation complaints generally contain several allegations of breach

    of legal duties.
  • 3 AG Sues Firewood Sellers Over Short Cords

    AG Sues Firewood Sellers Over Short Cords January 13, 2005 JANUARY 13, 2005 JAMES MCKENNA, ASSISTANT ATTORNEY GENERAL, 207-626-8842 Attorney General Steven Rowe today announced that his office has filed unfair trade practice lawsuits against two brothers, Roland W. Hale, II, and Bryan Hale for delivering less firewood than consumers ordered and paid for. Roland W. Hale, II, does business as Friendly Firewood at 65 Winston Way in New Gloucester. Bryan Hale does business as Avery Acres Firewood at 12 Tammy Lane in Windham. The Maine Department of Agriculture has received 18 consumer complaints against Roland W. Hale, II, and seven consumer complaints against Bryan Hale. Inspectors from the Office of Weights and Measure traveled to the consumers' homes and measured the wood that had been delivered. In each case, the inspector concluded that the consumer had been sold significantly less firewood than had been ordered and paid for. Attorney General Rowe stated that: "With energy prices as they are, Mainers are entitled to expect full value for their home heating dollar. Short sellers of any home heating fuel can expect our serious and immediate attention." The Attorney General complimented the Office of Weights and Measure for its investigation of the consumer complaints. If any consumer would like advice on how to measure delivery of firewood, or wishes to request an official measurement, they should contact the State Office of Weights and Measure, 28 State House Station, Augusta, ME 04333, or call (207) 287-3841. Consumers may also calculate the amount of wood in their own woodpiles by using the cord calculator on the Attorney General's website at .
  • 4 Fuel Prices Spark Demand for Firewood

    [Couldn't find original associated press article]


    Fuel prices spark demand for firewood


    By CLARKE CANFIELD, Associated Press


    PORTLAND, Maine — Sky-high prices for oil, kerosene and other fuels have put pressure on an alternative heating source in New Hampshire and all of New England: good, old-fashioned firewood.


    Demand for firewood is up across the Granite State and northern New England this season, driving firewood prices to unprecedented highs. Even in the nation’s most heavily forested states, some dealers are scrambling to find enough raw supply to cut into logs.


    New Hampshire Agriculture Commissioner Steve Taylor said the supply of firewood has dwindled because loggers are busy supplying the sawmills. Plus, he said, there are not enough loggers to meet the growing demand for wood.


    At the same time, more Granite Staters are turning to firewood because the skyrocketing price of home heating fuel.


    Jeff Taylor at Fireplace Village in Bedford said woodstove sales are up substantially. So much so, one maker of woodstoves, Hearthstone, has a waiting list two months long.


    How much wood…
    A hundred gallons of home heating oil generates roughly 14 million BTUs of heat. A cord of hardwood firewood generates about 20 or 21 million BTUs of heat.
    Using that formula, it’s a simple matter of math to figure out how much consumers can save using wood to heat their home.


    If a home uses 1,200 gallons of heating oil over a winter, it would cost $1,800 to heat at $1.50 a gallon, or $2,160 at $1.80 a gallon. The average statewide price of oil last week was $1.91 a gallon, according to the State Planning Office.


    A homeowner would require about eight cords of wood to generate the same amount of heat. If the wood cost $150 to $200 a cord, the cost would be $1,200 to $1,600. Under this scenario, the savings would be between $200 and nearly $1,000.


    It’s not much easier to find firewood either.


    Commissioner Taylor said there is precious little dry firewood to be had in the state because of the rainy fall.


    “The wood got good and soaked,” he said.


    Wood that was wet will not dry out during the winter.


    “The water is still there. It’s just frozen,” Taylor said.


    Taylor’s advice — buy next year’s firewood supply by April and store it in a well ventilated and covered area.


    Greenbacks, green wood


    Jake Dyer, who owns Southern Maine Firewood in Gorham, Maine, has sold more than 3,000 cords of wood over the past year. He still has green wood for sale, but ran out of ready-to-burn seasoned wood in October.


    “The biggest problem now is we can’t buy enough wood to supply our customers,” he said.


    Ray Colton of Colton Enterprises Inc. in Pittsfield, Vt., said he has sold almost 4,000 cords this season, about 1,000 more than last year. His company sells wholesale kiln-dried wood, the majority of which goes to the Boston market.


    “We’re selling as fast as we produce,” Colton said.


    The strong demand has pushed prices to levels never before seen, said Peter Lammert of the Maine Forest Service. Seasoned firewood is now selling for roughly $180 to $230 a cord, and green wood goes for $145 to $160. Lammert said prices a year ago were in the $140 to $160 range.


    Similar prices are being reported in New Hampshire and Vermont.


    Lammert, who has been following the firewood market for decades, said he expects demand to be even higher for next winter.


    “If Iraq and Kuwait and Iran all blow up, the price of oil could just be terrible,” he said. “If Americans had the gas prices Europeans have, we wouldn’t drive the vehicles we do. And if oil prices stay as high as they are, we won’t be heating the whole house with oil.”


    Cord consumption


    Firewood dealers typically buy their wood supply from loggers and then cut it to length, split it and sell it to consumers. It is usually sold by the cord, which is a stack of wood 4 feet wide by 4 feet high by 8 feet long.


    Mainers were burning more than 1 million cords a year when oil prices shot up in the early 1980s, according to the State Planning Office. But as oil prices fell, so did firewood consumption. By 1995, Mainers were burning fewer than 400,000 cords a year.


    These days, more people are again turning to wood as a supplemental heating source to cushion the high price of oil and other fuels, and as a backup against power outages, said Paul Reed Jr., owner of Reed’s Firewood in Durham, Maine.


    Oil prices are hovering at close to $2 a gallon in Maine, up more than third over a year ago. At $2.18 a gallon, kerosene is 56 cents higher than last year. Propane averages $2.06 a gallon, up 43 cents from a year ago.


    Even with high firewood prices, Reed said consumers can still save hundreds of dollars in the winter by burning wood. “Firewood at $180 a cord is still a deal compared to what it costs to heat your home with oil,” he said.


    Patti Schaffer and her husband, James, own Timberwolf Firewood in Lebanon. She said firewood sales were in the dumps when oil prices were less than $1 a gallon several years ago.


    But demand has picked up the past couple of years — and went out of control last summer when gasoline, and later on heating oil, hit $2 a gallon.


    “From July on we’ve been booked out three months,” said Schaffer. “People who ordered their wood in September got it in December.”


    In Corinna, Ron Judkins started selling firewood last May with plans to run the operation full-time when he retires from U.S. Postal Service in 2006. He has sold more than 1,000 cords of wood, and that’s working just part-time.


    “The people I knew in the business said that in the past, firewood orders had died out by the middle of November. But I’m still out straight,” he said.


    Wood stoves hot


    It’s not just firewood, either. Sales of wood-burning stoves are up 10-12 percent at the five Black Stove Shops in Maine.


    Company president Frank Tarantino said sales started picking up in August — about a month earlier than usual — when oil prices started rising fast and analysts were telling consumers to hold on for the ride.


    “It was a combination of high prices and uncertainty of the future,” Tarantino said.


    Firewood dealers say they’ve had difficulty finding enough supply of timber from loggers, who also sell to mills.


    Part of the reason is that some mills, notably in Millinocket and Lincoln, that been had shut down or had production cut back were in need of wood when they came back up during the year, creating competition for firewood dealers who were going after the same wood.


    The shortage was further exacerbated when Canadian loggers were prohibited from working in Maine between April and October because the U.S. cap on visas had been reached.

  • 5 Food Makers Devise Own Label Plan

    Food Makers Devise Own Label Plan

    By WILLIAM NEUMAN Published: January 24, 2011

    Starting in the next few months, the front of many food packages will prominently display important nutrition information, including calorie, fat and sugar content. The industrywide program was announced Monday by food makers and grocers.

    The executives who made the announcement repeatedly invoked the campaign against obesity initiated by Michelle Obama, the first lady, saying they had developed the voluntary labeling plan after she challenged them to help consumers make more healthful food choices.

    But in fact, the industry went its own way after months of talks with the White House and the Food and Drug Administration broke down.

    The Obama administration wanted the package-front labels to emphasize nutrients that consumers might want to avoid, like sodium, calories and fat. But manufacturers insisted that they should also be able to use the labels to highlight beneficial nutrients, including vitamins, minerals and protein.

    The administration concluded that “in the end, the label was going to be confusing, because those things would be included out of context, and it could make unhealthy foods appear like they had some redeeming quality,” said an official who was not authorized to discuss the talks and spoke on condition of anonymity. For example, the official said, “ice cream would be deemed healthy because it would have calcium in it.”

    As a result, the industry’s plan received only tepid approval from Mrs. Obama — a stark contrast to her enthusiastic support last week of a healthful eating initiative from Wal-Mart, which pledged to reformulate its store-brand foods and devise an easy-to-understand label showing which foods were more healthful.

    The industry move was widely seen as an attempt to influence the F.D.A.’s continuing effort to establish voluntary guidelines for front-of-package labeling. Once those guidelines are issued, perhaps this year, the industry could come under pressure to change its packaging again.

    In a statement, the White House said the labeling initiative was “a significant first step” but added that it would “look forward to future improvement” in the system. It said the F.D.A. would closely monitor the effort “to evaluate whether the new label is meeting the needs of American consumers.”

    Food industry executives said Monday that they had developed the plan in response to a speech by Mrs. Obama last March, in which she called for “clear, consistent” labels to help consumers make better decisions about food.

    “Mrs. Obama challenged our industry to move farther and faster providing consumers with healthier product choices and more information,” said Pamela Bailey, the chief executive of the Grocery Manufacturers Association, which represents food makers. “We would not be here today if she had not defined the common objective.”

    Ms. Bailey, speaking at a news conference in Phoenix, called the new labeling system “the most ambitious revision of food and beverage labels” since the 1990 law that established the now-familiar Nutrition Facts box that appears on the back or side of packaged foods.

    The plan unveiled Monday, called Nutrition Keys, calls for the front of food packages to display a series of icons that show four basic nutrients: calories, saturated fat, sodium and sugars.

    In that aspect, it responds to a federal Institute of Medicine report last year that recommended that front labels emphasize nutrients that consumers should limit because of their contribution to obesity and heart disease, major public health problems.

    But the institute’s report discouraged including positive nutrients on the label because they might confuse consumers and encourage manufacturers to fortify foods unnecessarily with vitamins or other ingredients.

    The industry plan allows manufacturers to display as many as two “nutrients to encourage” on each package, from a list of eight — potassium, fiber, vitamin A, vitamin C, vitamin D, calcium, iron and protein.

    The labeling system was developed by the Grocery Manufacturers Association and the Food Marketing Institute, a trade group that represents retailers, who often contract with food makers to create store brands. The groups said their members, which include a vast majority of food manufacturers and retailers, would begin using the new labels in the coming months. In the fall, they plan to begin a $50 million advertising campaign to promote the initiative.

    The industry announcement was the latest episode in a tug of war over how to convey important nutrition facts in a simple, easy-to-understand way on the front of packaged foods.

    Two years ago, the industry abandoned a labeling initiative, called Smart Choices, after the F.D.A. said it might mislead consumers. The campaign was criticized for promoting sugary cereals like Froot Loops as a healthy choice.

    The F.D.A. then said it would recommend the best way to provide nutrition facts to consumers. The industry’s talks with the administration began last year.

    The F.D.A. has said it was interested in a British labeling system using a traffic signal logo to show favorable (green) and unfavorable (red) nutrient content. Industry, however, has resisted such a display, which it fears might drive away consumers.

    David A. Kessler, a former F.D.A. commissioner, said the industry should wait for the government to set labeling rules. “What the industry is proposing can make something look healthier than it really is,” he said.

    Asked why the industry was proceeding with the labeling plan now, without waiting for the F.D.A. to complete its guidelines, Leslie G. Sarasin, the chief executive of the Food Marketing Institute, said the matter was too urgent to wait.

    She added, “Another reason for our quick action on this is that the first lady asked us to do it.”

    Sheryl Gay Stolberg contributed reporting.

    A version of this article appeared in print on January 25, 2011, on page

  • 6 For Your Health, Froot Loops

    For Your Health, Froot Loops


    Published: September 5, 2009

    A new food-labeling campaign called Smart Choices, backed by most of the nation's largest food manufacturers, is ''designed to help shoppers easily identify smarter food and beverage choices.''

    The green checkmark label that is starting to show up on store shelves will appear on hundreds of packages, including -- to the surprise of many nutritionists -- sugar-laden cereals like Cocoa Krispies and Froot Loops.

    ''These are horrible choices,'' said Walter C. Willett, chairman of the nutrition department of the Harvard School of Public Health.

    He said the criteria used by the Smart Choices Program were seriously flawed, allowing less healthy products, like sweet cereals and heavily salted packaged meals, to win its seal of approval. ''It's a blatant failure of this system and it makes it, I'm afraid, not credible,'' Mr. Willett said.

    The Food and Drug Administration and the Department of Agriculture have also weighed in, sending the program's managers a letter on Aug. 19 saying they intended to monitor its effect on the food choices of consumers.

    The letter said the agencies would be concerned if the Smart Choices label ''had the effect of encouraging consumers to choose highly processed foods and refined grains instead of fruits, vegetables and whole grains.''

    The government is interested in improving nutrition labeling on packages in part because of the nation's obesity epidemic, which experts say is tied to a diet heavy in processed foods loaded with calories, fats and sugar.

    The prominently displayed label debuts as many in the food industry and government are debating how to provide information on the front of packages that includes important elements from the familiar nutrition facts box that usually appears on the back of products.

    Eileen T. Kennedy, president of the Smart Choices board and the dean of the Friedman School of Nutrition Science and Policy at Tufts University, said the program's criteria were based on government dietary guidelines and widely accepted nutritional standards.

    She said the program was also influenced by research into consumer behavior. That research showed that, while shoppers wanted more information, they did not want to hear negative messages or feel their choices were being dictated to them.

    ''The checkmark means the food item is a 'better for you' product, as opposed to having an x on it saying 'Don't eat this,' '' Dr. Kennedy said. ''Consumers are smart enough to deduce that if it doesn't have the checkmark, by implication it's not a 'better for you' product. They want to have a choice. They don't want to be told 'You must do this.' ''

    Dr. Kennedy, who is not paid for her work on the program, defended the products endorsed by the program, including sweet cereals. She said Froot Loops was better than other things parents could choose for their children.

    ''You're rushing around, you're trying to think about healthy eating for your kids and you have a choice between a doughnut and a cereal,'' Dr. Kennedy said, evoking a hypothetical parent in the supermarket. ''So Froot Loops is a better choice.''

    Froot Loops qualifies for the label because it meets standards set by the Smart Choices Program for fiber and Vitamins A and C, and because it does not exceed limits on fat, sodium and sugar. It contains the maximum amount of sugar allowed under the program for cereals, 12 grams per serving, which in the case of Froot Loops is 41 percent of the product, measured by weight. That is more sugar than in many popular brands of cookies.

    ''Froot Loops is an excellent source of many essential vitamins and minerals and it is also a good source of fiber with only 12 grams of sugar,'' said Celeste A. Clark, senior vice president of global nutrition for Kellogg's, which makes Froot Loops. ''You cannot judge the nutritional merits of a food product based on one ingredient.''

    Dr. Clark, who is a member of the Smart Choices board, said that the program's standard for sugar in cereals was consistent with federal dietary guidelines that say that ''small amounts of sugar'' added to nutrient-dense foods like breakfast cereals can make them taste better. That, in theory, will encourage people to eat more of them, which would increase the nutrients in their diet.

    Ten companies have signed up for the Smart Choices program so far, including Kellogg's, Kraft Foods, ConAgra Foods, Unilever, General Mills, PepsiCo and Tyson Foods. Companies that participate pay up to $100,000 a year to the program, with the fee based on total sales of its products that bear the seal.

    The Smart Choices checkmark is meant to take the place of similar nutritional labels that individual manufacturers began plastering on their packages several years ago, like PepsiCo's Smart Choices Made Easy and Sensible Solution from Kraft.

    In joining Smart Choices, the companies agreed to discontinue their own labeling systems, Ms. Kennedy said.

    Michael R. Taylor, a senior F.D.A. adviser, said the agency was concerned that sugar-laden cereals and high-fat foods would bear a label that tells consumers they were nutritionally superior.

    ''What we don't want to do is have front-of-package information that in any way is based on cherry-picking the good and not disclosing adequately the components of a product that may be less good,'' Mr. Taylor said


    He said the agency would consider the possibility of creating a standardized nutrition label for the front of packages.

    ''We're taking a hard look at these programs and we want to independently look at what would be the sound criteria and the best way to present this information,'' Mr. Taylor said.

    Michael Jacobson, executive director of the Center for Science in the Public Interest, an advocacy group, was part of a panel that helped devise the Smart Choices nutritional criteria, until he quit last September. He said the panel was dominated by members of the food industry, which skewed its decisions.

    ''It was paid for by industry and when industry put down its foot and said this is what we're doing, that was it, end of story,'' he said. Dr. Kennedy and Dr. Clark, who were both on the panel, said industry members had not controlled the results.

    Mr. Jacobson objected to some of the panel's nutritional decisions. The criteria allow foods to carry the Smart Choices seal if they contain added nutrients, which he said could mask shortcomings in the food.

    Despite federal guidelines favoring whole grains, the criteria allow breads made with no whole grains to get the seal if they have added nutrients.

    ''You could start out with some sawdust, add calcium or Vitamin A and meet the criteria,'' Mr. Jacobson said.

    Nutritionists questioned other foods given the Smart Choices label. The program gives the seal to both regular and light mayonnaise, which could lead consumers to think they are both equally healthy. It also allows frozen meals and packaged sandwiches to have up to 600 milligrams of sodium, a quarter of the recommended daily maximum intake.

    ''The object of this is to make highly processed foods appear as healthful as unprocessed foods, which they are not,'' said Marion Nestle, a nutrition professor at New York University.

  • 7 Shevin

    526 F.2d 266, *; 1976 U.S. App. LEXIS 13224, **; 1976-1 Trade Cas. (CCH) P60,681 STATE OF FLORIDA ex rel. Robert L. SHEVIN, Attorney General, Plaintiff-Appellant, v. EXXON CORPORATION et al., Defendants-Appellees No. 74-3309 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 526 F.2d 266; 1976 U.S. App. LEXIS 13224; 1976-1 Trade Cas. (CCH) P60,681 January 22, 1976 PRIOR HISTORY: Appeal from the United States District Court of the Northern District of Florida. JUDGES: Tuttle, Thornberry and Coleman, Circuit Judges. Coleman, Circuit Judge (dissenting). OPINIONBY: THORNBERRY OPINION: [*267] THORNBERRY, Circuit Judge: In July of 1973, the State of Florida through its Attorney General commenced an ambitious and highly publicized antitrust action against seventeen major oil companies n1 in federal district court. Among the preliminary questions raised by the defendants was the right of the Attorney General, under Florida law, n2 to initiate this action without explicit authorization [**4] from other departments, agencies, and political subdivisions of the state. n3 Prior to ruling on the many other motions before it, the district court sought to resolve this threshold issue by staying the action in [*268] order for the Attorney General to obtain a declaratory judgment in the Florida courts. The Attorney General, deeming Florida law clear on the point, instead prosecuted an abortive appeal to this Court, which we dismissed without opinion for lack of a final order. The district court has since removed this obstacle, dismissing the action as one beyond the Attorney General's authority. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - -n1 The complaint, under ºº 1 and 2 of the Sherman Act, 15 U.S.C. ºº 1, 2 (1970), and ºº 3 and 7 of the Clayton Act, 15 U.S.C. ºº 14, 18 (1970), alleged a worldwide scheme of anticompetitive activities in the production, transportation, refining, and marketing of petroleum and petroleum products. The Attorney General seeks treble damages, divestiture, and injunctive and declaratory relief. n3 Although the suit is in the name of the state as a whole, it seeks to recover damages allegedly suffered by the state as a consumer, which have accrued directly to the constituent units of the state - its "agencies, departments, and political subdivisions." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - This appeal followed, with the Attorney General vigorously asserting his right to institute the lawsuit and the defendants contesting it. The oil companies, however, do not forcefully urge affirmance of the district court; they argue instead that the issue is a delicate and difficult one of state law which should be certified to the Florida Supreme Court for its definitive decision. We decline to do so under the circumstances here presented and find the Attorney General to be properly in federal court on behalf of Florida. We therefore reverse. I. The office of attorney general is older than the United States and older than the State of Florida. n4 As chief legal representative of the king, the common law attorney general was clearly subject to the wishes of the crown, but, even in those times, the office was also a repository of power [**6] and discretion; n5 the volume and variety of legal matters involving the crown and the public interest made such limited independence a practical necessity. Transposition of the institution to this country, where governmental initiative was diffused among the officers of the executive branch and the many individuals comprising the legislative branch, could only broaden this area of the attorney general's discretion. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - n4 Although the king appeared in court by his attorney even in the earliest period of English legal history, it was not until the sixteenth century that powers were consolidated in a single attorney who could be called "the chief representative of the crown in the courts." VI W. Holdsworth, A History of English Law, 457-61 (2d ed. 1971). n5 See VI W. Holdsworth, supra note 3, at 466-69, 470; XII id. 305. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - As a result, the attorneys general of our states have enjoyed a significant degree of autonomy. n6 Their duties and powers typically are not exhaustively defined by either constitution [**7] or statute but include all those exercised at common law. n7 There is and has been no doubt that the legislature may deprive the attorney general of specific powers; but in the absence of such legislative action, he typically may exercise all such authority as the public interest requires. n8 And the attorney general has wide discretion [*269] in making the determination as to the public interest. n9 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - n6 This is particularly true where, as in Florida and most of our states, the attorney general is an official independently elected by the people. The significance of the attorney general's status as an official directly chosen by the people was recognized by Justice Ervin of the Florida Supreme Court in these terms: The Attorney General is elected by the people; he is entrusted by them with the common law power to legally represent them or some of them in matters deemed by him to affect the public interest. . . . Regardless of the effectiveness of his efforts in particular public legal situations, at least the people have the continuing satisfaction of knowing that their elected Attorney General has the right to exercise his conscientious official discretion to enter into those legal matters deemed by him to involve the public interest, even though not expressly authorized by statute. State ex rel. Shevin v. Yarborough, 257 So.2d 891, 895 (Fla.1972) (Ervin, J., concurring) (emphasis added). [**8] n7 See, e.g., State of Illinois v. Bristol-Myers Co., 152 U.S. App. D.C. 367, 470 F.2d 1276 (1972); D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10 (1974); State ex rel. Patterson v. Warren, 254 Miss. 293, 180 So.2d 293 (1965); State ex rel. Carmichael v. Jones, 252 Ala. 479, 41 So.2d 280 (1949); 7 Am.Jur.2d º 6, Attorney General; 7 C.J.S. Attorney General º 5. See generally Shepperd, Common Law Powers and Duties of the Attorney General, 7 Baylor L.Rev. 1 (1955). n8 See, e.g., D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10 (1974); Darling Apt. Co. v. Springer, 25 Del. Ch. 420, 22 A.2d 397 (1941); State ex rel. Ervin v. Collins, 85 So.2d 852 (Fla.1956); 7 Am.Jur.2d º 6, Attorney General; 7 C.J.S. Attorney General º 5. n9 See, e.g., Mobil Oil Corp. v. Kelley, 353 F. Supp. 582 (S.D.Ala.1973), aff'd, 493 F.2d 784 (5 Cir. 1973), cert. denied, 419 U.S. 1022, 95 S. Ct. 498, 42 L. Ed. 2d 296 (1974); In re Intervention of the Attorney General, 326 Mich. 213, 40 N.W.2d 124 (1949); Appeal of Margiotti, 365 Pa. 330, 75 A.2d 465 (1950); State ex rel. Davis v. Love, 99 Fla. 333, 126 So. 374 (Fla.1930); 7 Am.Jur.2d º 13, Attorney General; 7 C.J.S. Attorney General º 5. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - [**9] Thus it can be seen that the common law powers of the attorney general appear, initially at least, broad enough to support the action challenged in this case. But of course, observations concerning the historic office of attorney general or that office as it "typically" exists in the United States cannot resolve the question before us. They can only provide background for inquiry into the specific constitutional and statutory provisions, and judicial decisions, which define the office of Attorney General of Florida. Only that inquiry will allow us to determine whether that office fully fits the common law paradigm or differs in significant respects. Although the Attorney General of Florida is a constitutional officer, the relevant Florida constitutional provisions have never attempted to list specifically his powers. The first Florida Constitution, written in 1838, provided for an elected Attorney General who would attend sessions of the legislature, draft all necessary "forms of proceeding" for laws passed at the sessions, and "perform such other duties, as may be prescribed by law." n10 In the present constitution, adopted one hundred and thirty years later, no greater specificity [**10] was attempted. In defining the cabinet, including the Attorney General who "shall be the chief state legal officer," the 1968 Florida Constitution provides that: n11 [in] addition to the powers and duties specified herein, [the members of the cabinet] shall exercise such powers and perform such duties as may be prescribed by law. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - n10 Fla. Const., art. V (1838). n11 Fla. Const., art. IV, º 4 (1968). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - This constitutional provision directs inquiry to the provisions of applicable "law". Does this refer only to statutory provisions defining specific functions of the Attorney General or does it include the broad and unenumerated powers of the office prescribed by the common law? We find that the common law powers still obtain for several reasons. First, Florida has, since its pre-statehood period, enacted the common law in force where not in conflict with statute. n12 In addition, the statutory provision which does enumerate the Florida Attorney General's powers makes no pretense at being [**11] comprehensive; it provides in part that: n13 [*270] the attorney general shall . . . have and perform all powers and duties incident or usual to such office . . . . - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - n12 Fla. Stat. Ann. º 2.01 (1961) (derived from Act, Nov. 6, 1829, º 1). See generally State ex rel. McKittrick v. Missouri Pub. Serv. Comm., 352 Mo. 29, 175 S.W.2d 857, 861 (Mo.1943). n13 Fla. Stat. Ann. º 16.01 (1961) provides in full: The attorney general shall reside at the seat of government, and shall keep his office in a room in the capitol; he shall perform the duties prescribed by the constitution of this state, and also perform such other duties appropriate to his office, as may from time to time be required of him by law, or by resolution of the legislature; he shall, on the written requisition of the governor, secretary of state, treasurer, or comptroller, give his official opinion and legal advice in writing on any matter touching their official duties; he shall appear in and attend to in behalf of the state, all suits or prosecutions, civil or criminal, or in equity, in which the state may be a party, or in anywise interested, in the supreme court and district courts of appeal of this state; he shall appear in and attend to such suits or prosecutions in any other of the courts of this state, or in any courts of any other state, or of the United States; he shall have and perform all powers and duties incident or usual to such office, and he shall make and keep in his office a record of all his official acts and proceedings, containing copies of all his official opinions, reports and correspondence, and also keep and preserve in his office all official letters and communications to him, and cause a registry and index thereof to be made and kept, all of which official papers and records shall be subject to the inspection of the governor of the state, and to the disposition of the legislature by act or resolution thereof. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [**12] Finally, and most importantly, the Florida Supreme Court has consistently recognized the continuing existence of the Attorney General's common law powers. The first clear decision on the issue was the 1869 case of State ex rel. Attorney General v. Gleason, in which the Court held: n14 The Attorney-General is the attorney and legal guardian of the people, or of the crown, according to the form of government. His duties pertain to the Executive Department of the State, and it is his duty to use means most effectual to the enforcement of the laws, and the protection of the people, whenever directed by the proper authority, or when occasion arises. . . Our Legislature has not seen fit to make any change in the common law rule. The office of the Attorney-General is a public trust. It is a legal presumption that he will do his duty, that he will act with strict impartiality. In this confidence he has been endowed with a large discretion, not only in cases like this, but in other matters of public concern. The exercise of such discretion is in its nature a judicial act, from which there is no appeal, and over which the courts have no control. This affirmation of [**13] the existence of the Attorney General's common law powers does not stand alone in Florida jurisprudence. It is echoed in case after case from Gleason to the 1972 decision in State ex rel. Shevin v. Yarborough, 257 So.2d 891 (Fla.1972). n15 See State ex rel. Ervin v. Collins, 85 So.2d 852 (Fla.1956); State ex rel. Landis v. Kress, 115 Fla. 189, 155 So. 823 (1934); State ex rel. Davis v. Love, 99 Fla. 333, 126 So. 374 (Fla.1930); State ex rel. Moodie v. Bryan, 50 Fla. 293, 39 So. 929 (1905). We conclude that there simply is no question that such powers exist. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - n14 12 Fla. 190, 212 (Fla. 1869), quoted in State ex rel. Davis v. Love, 99 Fla. 333, 126 So. 374 (1930) (emphasis added). n15 Although there is room in Yarborough for a difference of opinion as to the extent of the common law powers, the Court clearly recognized their existence: "The Attorney General inherited many powers and duties from the King's Counsellor at Common Law . . . ." 257 So.2d at 893. - - - - - - - - - - - - - - - - -End.Footnotes- - - - - - - - - - - - - - - [**14] II. But even this conclusion does not decide the case before us. Although the Florida Attorney General has common law powers, such powers might not extend to the specific power asserted: the institution of an action under federal law, to recover damages sustained by departments, agencies, and political subdivisions which have not affirmatively authorized suit. And even if the specific common law power asserted exists as a general matter, it might be that Florida's constitutional or statutory law conflicts with the common law on that point and thus overrules it. As noted earlier, Florida statutory law expressly authorizes the Attorney General to "appear in and attend to" actions in which the State is a party. See note 13, supra. Although it might be argued that this statutory power includes the power to initiate suit as well, there is no doubt that the common law power of the Attorney General extends this far. The Florida Supreme Court in State ex rel. Landis v. Kress n16 defined [*271] this power to initiate actions in terms clearly sufficient to cover the case before us: The Attorney General has the power and it is his duty among the many devolving [**15] upon him by the common law to prosecute all actions necessary for the protection and defense of the property and the revenue of the state . . . . This understanding was reiterated by Justice Ervin, a former Florida Attorney General, who stated that: n17 it is the inescapable historic duty of the Attorney General, as the chief state legal officer, to institute, defend or intervene in any litigation or quasi-judicial administrative proceeding which he determines in his sound official discretion involves a legal matter of compelling public interest. And, contrary to defendants' contention, the Attorney General's power to institute litigation on his own initiative is not limited to quo warranto proceedings in Florida n18 or elsewhere; n19 it is as broad as the "protection and defense of the property and revenue of the state," and, indeed, the public interest requires. n20 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - n16 115 Fla. 189, 155 So. 823, 827 (1934). We must reject any argument by defendants that the right to "prosecute" an action does not include the right to institute the action. That term typically is used to refer, as a unit, to the institution and maintenance to a conclusion of a legal proceeding. See Black's Law Dictionary 1385 (4th ed. 1968); Stewart v. Svetlay, 46 Ala. App. 601, 246 So.2d 670, 672 (1971); People v. Zara, 44 Misc.2d 698, 255 N.Y.S.2d 43, 46-47 (1964); Thelin v. Intermountain Lumber & Builders Supply, 80 Nev. 285, 392 P.2d 626 (1964); Sigmon v. State, 200 Va. 258, 105 S.E.2d 171, 178 (1958); Ex parte Kelly, 45 Okl. 577, 146 P. 444, 445 (1915); State ex rel. Stubbs v. Dawson, 86 Kan. 180, 119 P. 360, 364 (1911). That the Florida Supreme Court in Kress did not adopt the restrictive definition contended for by defendants is evidenced by the fact that its description of the quo warranto power also did not specifically mention the right to institute an action; it was power "to determine the right of any one who claims or usurps any office . . . ." Yet the Court said of this power of the Attorney General, that, where cause to institute an action exists, "the power and authority exists in him to present it without leave asked of any one. In that respect he represents the sovereignty whose attorney he is." 155 So. at 827. Similarly, the Court broadly stated that it is the Attorney General's duty "to exercise all such power and authority as public interests may require from time to time." Id. (emphasis added). Such language seems inconsistent with the very narrow meaning of "prosecute" which defendants argue was intended. [**16] n17 State ex rel. Shevin v. Yarborough, supra, 257 So.2d at 894 (Ervin, J., concurring). n18 For example, in State ex rel. Davis v. Love, 99 Fla. 333, 126 So. 374 (Fla.1930), the Court upheld the Attorney General's right to file a writ of prohibition against a circuit court judge. And, although not involving original institution of actions in a trial court, State ex rel. Ervin v. Collins, supra, (appeal); State ex rel. Shevin v. Kerwin, 279 So.2d 836 (Fla.1973) (appeal), and State ex rel. Shevin v. Yarborough, supra, (intervention) present examples of the Attorney General's involvement of the state in other types of litigation on his own initiative. n19 The black letter in 7 C.J.S. Attorney General º 8a is: The attorney general, as the chief legal representative of the state, may institute all legal proceedings necessary to protect the interests of the state . . . . Accord, 7 Am.Jur.2d º 11, Attorney General. See, e.g., State ex rel. Carmichael v. Jones, 252 Ala. 479, 41 So.2d 280 (1949); Morley v. Berg, 216 Ark. 562, 226 S.W.2d 559 (1950); D'Amico v. Board of Medical Examiners, 11 Cal.3d 1, 112 Cal.Rptr. 786, 520 P.2d 10 (1974); Gandy v. Reserve Life Ins. Co., 279 So.2d 648 (Miss.1973); Bonniwell v. Flanders, 62 N.W.2d 25 (N.D.1953); Agey v. American Liberty Pipe Line Co., 141 Tex. 379, 172 S.W.2d 972 (1943). [**17] - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - As to whether such authority [**18] is limited to actions under state law, n21 we again [*272] start with the Florida Supreme Court's Kress decision: "The Attorney General has the power . . . to prosecute all actions necessary for the protection and defenses of the property and revenue of the state" (emphasis added). We note also that such a limitation would result in a significant impairment of the state's ability to expeditiously assert important rights under the antitrust laws, bankruptcy laws, and other federal legislation; if authorization must be forthcoming from the legislature or from a myriad of state agencies, it will in some cases come too late to be worthwhile. Moreover, study of applicable Florida statutes reveals no basis for such a restriction. To the contrary, the Attorney General is authorized to "appear in and attend to" litigation in state and federal courts alike. º 16.01, Fla. Stat. Ann. (1961). Finally, we note that actions by attorneys general on behalf of states under the federal antitrust laws are by no means a novel phenomenon. See, e.g., Hawaii v. Standard Oil of California, 405 U.S. 251, 92 S. Ct. 885, 31 L. Ed. 2d 184 (1972); In re Multidistrict Motor Vehicle [**19] Air Pollution Control Equipment, 481 F.2d 122 (9 Cir.), cert. denied sub nom., Morgan v. Automobile Mfrs. Assn., 414 U.S. 1045, 94 S. Ct. 551, 38 L. Ed. 2d 336 (1973); State of Illinois v. Bristol-Myers Co., 152 U.S. App. D.C. 367, 470 F.2d 1276 (1972); State of West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079 (2 Cir.), cert. denied sub nom., Cotler Drugs, Inc. v. Chas. Pfizer & Co., 404 U.S. 871, 92 S. Ct. 81, 30 L. Ed. 2d 115 (1971); State of Illinois v. Associated Milk Producers, Inc., 351 F. Supp. 436 (N.D.Ill.1972); State ex rel. Derryberry v. Kerr-McGee Corp., 516 P.2d 813 (Okl.1973). See also Gardner v. State of New Jersey, 329 U.S. 565, 67 S. Ct. 467, 91 L. Ed. 504 (1947) (attorney general's response to objections in railroad reorganization proceeding under Bankruptcy Act was authorized by state law); Commonwealth of Kentucky ex rel. Hancock v. Ruckelshaus, 362 F. Supp. 360 (W.D.Ky.1973) (action by attorney general under Clean Air Act of 1970). For all these reasons, we find no basis for holding that the Attorney [**20] General may not act to enforce a state's rights under federal as well as state law. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - n21 We note that the United States District Court for the Southern District of Florida has held that, "under Florida law, the Attorney General has the authority to institute suit to enforce rights created under the laws of Florida in the Federal Court in Diversity suits, but not to enforce rights created under the laws of the United States." Point East One Condominium Corp. v. Point East Developers, Inc. (No. 73-1815 - Div.-CA, Oct. 17, 1974). - - - - - - - - - - - - - - - - -EndFootnotes- - - - - - - - - - - - - Finally, it could be argued that, although the common law power of the attorney general to initiate actions under federal law exists, there is no power to initiate an action without affirmative authorization from state instrumentalities where, as here, the action seeks to recover damages allegedly accruing to those instrumentalities. n22 Pertinent to this point are the Florida Supreme Court decisions in Holland v. Watson, 153 Fla. 178, 14 So.2d 200 (1943), and Watson v. Caldwell, 158 Fla. 1, 27 So.2d 524 (1946). [**21] In those cases, the Court held that the statutorily-created Board of Administration and Trustees of the Internal Improvement Fund were not required to allow the Attorney General to represent them in legal matters, but could employ special counsel of their own choosing. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n22 Such an argument would draw a distinction between actions by the state to vindicate its interests as a unified government entity - for example, proceedings to abate a nuisance or in the nature of quo warranto - and those by the state as a consumer, in which the state may be seen as a collective of the various departments, agencies, and subdivisions which are the actual consumers. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - We find that Holland and Watson do not cast doubt on the Attorney General's power in this case for several reasons. First, those cases were not ones in which the Attorney General's litigation power was at issue. In both cases, the Florida Supreme Court categorized the Attorney General's duties under three headings: (1) Such duties as the Constitution [**22] and the Legislature lay on him, (2) His duties as legal advisor to the officers of the Executive Department, and (3) His duty as to litigation in which the State is a party or is otherwise interested. 14 So.2d at 202; 27 So.2d at 528. [*273] The Court then treated the question before it as falling under (2) - whether the phrase "officers of the Executive Department" extended to the governmental bodies in question. The scope of the Attorney General's litigation power, under (3) above, was not discussed at all. Second, the cases in question dealt with a situation in which there was a conflict between the wishes of the Attorney General and the government body as to the body's legal representation. The body had secured legal counsel on its own and the Attorney General sued to enjoin that action. By contrast, there is no evidence in the record before us of any objection on the part of the government bodies which allegedly have been injured by the defendants' business practices. And, as a practical matter, it is difficult to imagine such objections. The individual government instrumentalities involved have something to gain from this suit, and nothing [**23] to lose but their causes of action (by way of res judicata or collateral estoppel); and in view of the novelty and difficulty of this suit, it seems most unlikely that those government entities would prefer to prosecute their causes of action individually. Finally, and most importantly, Holland and Watson can be read, at the very most, to negate the Attorney General's independent litigation powers only with respect to those governmental entities which are not part of the "Executive Department" of Florida. Thus, even if this extreme and, we believe, incorrect reading of those decisions were adopted, the Attorney General's powers with respect to the basic Executive Department would remain unquestioned. At this stage of the case, the sole question for decision is whether the Attorney General of Florida is properly in federal court prosecuting this action; it is, in essence, a question of standing. We find that, at least as to the Attorney General's right to represent the state on behalf of the basic Executive Departments, there can be no significant doubt. n23 Footnotes- - - - - - - - - - - - - - - - - [**24] For all of these reasons, we believe that the Holland and Watson cases do not negate the Attorney General's authority to bring the instant action. n24 Neither do we believe that the Attorney General's authority is seriously cast in doubt by the Florida statutes cited by defendants. The fact that various statutes delegate specific portions of Florida's litigation power to state's attorneys n25 in no way indicates an abrogation of the Attorney General's common law powers as to other types of litigation; those powers still obtain in the absence of express legislative provision to the contrary. See, e.g., State ex rel. Patterson v. Warren, 254 Miss. 293, 180 So.2d 293, 299-300 (1965); 7 Am.Jur.2d º 10, Attorney General; 7 C.J.S. [*274] Attorney General º 5. And the Florida Legislature's authorization of suit by the Attorney General under the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. Ann. º 501.201 et seq. (1974 Supp.), does not negate his powers with relation to the federal antitrust laws. That statute assigns part of its enforcement power to the state's attorneys, thus necessitating specific delineation of the respective responsibilities [**25] of the state's attorneys and Attorney General. The specific authorization therefore had an independent purpose and permits no negative implication as to the federal acts; in any event, the statutory grant of a power possessed by the attorney general at common law normally does not deprive him of other common law powers. See State ex rel. Carmichael v. Jones, 252 Ala. 479, 41 So.2d 280, 284 (Ala. 1949); 7 C.J.S. Attorney General º 5. Finally, defendants cite the 1969 creation of a Department of Legal Affairs, headed by the Attorney General, to serve as counsel where requested by state governmental bodies, which have independent rights to sue on their own behalf. Fla. Stat. Ann. º 20.11 (1974 Supp.). But that statute merely transfers the Attorney General's powers, including all those "prescribed by law," and provides that each board "of which the attorney general is a member" may retain other counsel. Thus, to the extent the statute is at all relevant, it casts no more doubt on the Attorney General's powers than Holland and Watson. Like those cases, the statute deals with a board's rights to obtain other counsel if it so chooses and, like those cases, [**26] the statute applies to only a few of the entities upon whom the Attorney General's standing in this case may be based. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - III. Thus we conclude that (1) the Attorney General of Florida retains common [**27] law powers, (2) that those powers extend to institution of suits under federal law without specific authorization of the individual government entities who allegedly have sustained the legal injuries asserted, and (3) that neither the decisional nor statutory law of Florida negates such authority. We reach this conclusion, after extensive study and able briefing by all parties, with considerable confidence. In our view, this simply is not an extremely close question. ………In any event, first and last, this is solely a question of Florida law, dealing with one of its officials who purports to [*277] act on its behalf. While we have jurisdiction to decide it incidentally to the [**36] pending suit, I would give the Florida courts a chance to resolve it in a final, binding manner, especially since we need not invoke the doctrine of abstention but may resort to a specific procedure, frequently invoked in questions of less far reaching consequences. Copyright 2000 LEXIS-NEXIS Group. All rights reserved. • CLOSE WINDOW • PRINT THIS PAGE From Times Online June 24, 2008 MPs oppose Attorney-General reforms The Commons Justice Committee will condemn proposals to allow the Government's top lawyer to halt fraud investigations Frances Gibb, Legal Editor Proposed powers for the Attorney-General to halt prosecutions on national security grounds or to stop fraud investigations are condemned by an influential committee of MPs today. The power to stop prosecutions should be for the Prime Minister, not the Govermment’s chief law officer, the Commons Justice Committee of MPs say. They also condemn plans to allow decisions to halt prosecutions by the Attorney-General to be immune from challenge in the courts - described by one leading lawyer as “flouting constitutional principles”. Nor should the Attorney have power to halt investigations by the Serious Fraud Office, they say. Finally the MPs call for the Attorney-General’s role of legal adviser to the Cabinet to be split off from the role of Government minister. The hard-hitting report says that plans to reform the 800-year old office of the Attorney-General, in the draft Constitutional Renewal Bill now under Parliamentary scrutiny, are ineffective. The proposed reforms fail to address the fundamental problem of a conflict between the Attorney-General’s legal and political roles - and will fail to bolster public confidence. The MPs’ criticisms comes as the current Attorney-General, Baroness Scotland of Asthal, is due to give evidence to MPs today on the proposed reforms. The Bill proposes putting into statute the Attorney-General’s power to halt prosecutions in the national interest. But in a controversial move, it also proposes that such decisions could not be challenged by way of judicial review - what the MPs say is effectively an “ouster clause”, ousting the jurisdiction of the courts. A leading constitutional lawyer, Professor Jeffrey Jowell, told the MPs in their inquiry that such a proposal flew “in the face of the fundamental constitutional principles of the rule of law and separation of powers”. Today’s report concludes: “We see no case for the inclusion n of the ouster clause.” The MPs also add that that there is no justification for giving the Attorney-General power to halt investigations, as opposed to prosecutions, by the Serious Fraud Office, a power not given in relation to other prosecuting authorities. It was the furore over the halting by the SFO of its investigation into corruption allegations in connection with BAE Systems and its arms deal with Saudi Arabia that in part prompted a review of the Attorney-General’s role. There was also the controversy over the role of the Attorney-General's role in the “cash for honours” police investigation and over his advice to the Government on the legality of the Iraq war. Lord Goldsmith, QC, held the role at the time. The MPs say: “We see no reason to give the Attorney-General special powers to direct the SFO to discontinue investigations (as oppposed to proceedings). The work of the SFO should be placed on the same footing in this respect as the other proecution agencies.” Sir Alan Beith, chairman of the committee, said: “The main areas that concern the public about the Attorney’s role arise from fears that a politican, sitting in Cabinet and with the traditional collective responsibility for the decisions of that Cabinet, may not be independent when acting as legal adviser on major political decisions, or making the decision about ending prosecutions, or in some cases investigations.” The legal powers of the office - to bring or intervene in legal proceedings or as chief legal adviser to the Government - could be better performed by a non-political office holder, he added. “This Bill has been called more of a 'constitutional retreat bill' than a constitutional renewal bill and on this issue certainly we feel that it fails to achieve the purpose given to constitutional reform by the Prime Minister. “It gives greater power to the Executive and it does not add to transparency.” Contact our advertising team for advertising and sponsorship in Times Online, The Times and The Sunday Times. Search to buy or rent UK property. © Copyright 2008 Times Newspapers Ltd.
  • 8 New Hampshire

    This brief was filed in 2011 by almost all former New Hampshire Attorneys General in the face of a legislative attempt to force that state's attorney general to intervene in a specific case. It outlines the origins of the independent and bi-partisan nature of the state attorney gener

    This Memorandum is filed by and on behalf of lawyers who are former Attorneys General of New Hampshire or former Assistant Attorneys General in the Office of the Attorney General (the "former members of the Office"). By Order dated May 6,2011, the Court invited interested parties to file memoranda on the request by the Senate in Senate Resolution 9, for an opinion of the Justices on the question of the constitutionality of the requirement in House Bill 89 ("HB 89" or "the "Bill") that "the attorney general move to join the State of New Hampshire as a plaintiff in the lawsuit" challenging the constitutionality of the federal Patient Protection and Affordable Care Act ("PPACA") Pub.L. I 11-148, 724 Stat. 119. HB 89 provides as follows: The attorney general shall, no later than July 1,2011, move to join the state of New Hampshire øs a plaintíff in the lawsuit pending in federal court captioned State of Florida et al. v. United States Department of Health and Human Services et al. (Emphasis added.) As is apparent from this language, HB 89 mandates that the Attorney General proceed in a particular lawsuit challenging the constitutionality of the PPACA and that he proceed in a specific manner, that is, as a plaintiff asserting the claims and making the arguments raised on the plaintiffs' side of that lawsuit.t It requires him to take a legal position on behalf of the State regardless of his judgment (as the lawyer charged by the State Constitution with representing the State's interests) about the merits of the PPACA, about the positions taken in the Florida lawsuit, or about the wisdom of appearing in that particular lawsuit with its particular array of plaintiffs. Put simply, the Bill removes the ability of the Attorney General to act in his capacity as the State's lawyer, stripping him of his right and duty to exercise his judgment or discretion in determining the legal and constitutional positions that may be taken in good faith on the State's behalf. The former members of the Office submit that HB 89 violates the New Hampshire Constitution in two ways. First, it is fundamentally inconsistent with the responsibility and authority of the Attorney General granted by Part II, Article 46 of the New Hampshire Constitution to act as the attorney general for the State. As the State's lawyer, the Attorney General is both empowered and obligated to act for the State in legal matters and to exercise his or her own judgment about the claims or arguments that may reasonably be made in litigation. Second, it is an unconstitutional intrusion by the Legislature on the essential functions of the executive branch of which the Attorney General is a member, in violation of Part I, Article 37 of the Constitution. I. Interests of the Parties to this Memorandum The lawyers named in this Memorandum either served as the Attorney General (Rudman, Rath, Smith, Merrill, Mclaughlin and Heed) or served as an Assistant Attorney General under one or more of eleven Attorneys General (Rudman, Souter, Rath, Smith, Merrill, Arnold, Howard, Mclaughlin, Heed and Ayotte). Collectively, their tenure in the Office spanned the administrations of nine Governors (Peterson, Thomson, Gallen, Sununu, Gregg, Merrill, Shaheen, Benson and Lynch). They are members of different political parties and likely have different views on the constitutionality, or wisdom, of the PPACA.2 Yet they share one coImmon interest: an interest in the ability of the Attorney General to enforce the laws of this State by exercising his or her ethically broad professional judgment without political dictation when acting as the State's lawyer. Their interest may be most simply stated as follows: under the State Constitution the Attorney General is the Attorney General. He or she is obligated to act as a lawyer and must have the authority and retain the obligation to do so, consistently with the ethical constraints and responsibilities that every lawyer is bound to honor. The lawyers submitting this memorandum believe that if political considerations are permitted to mandate or materially limit the exercise of the Attomey General's judgment as a lawyer, law will be subordinated to the political forces of the moment, and the ability of the Attorney General to perform the essential functions of the Office mandated by the Constitution would be substantially undermined. Their concern is that the Attomey General be able to perform those functions free from political coercion as the framers of the New Hampshire Constitution intended. This memorandum is addressed to that concern. II. Executive Branch HB 89 mandates that the Attorney General challenge the constitutionality of a specific federal law in a particular manner. If HB 89 were constitutional, then it would follow that the Legislature would have the power to order the Attorney General not to challenge the constitutionality of that same law (or any other law) or to order the Attorney General to conduct those challenges by filing briefs or legal memoranda written by the Legislature. The issue presented by HB 89 may be framed as follows: can the Legislature require that the Attorney General discharge his constitutional obligation to act as the lawyer for the State in legal matters by taking particular legal positions? The former members of the Office submit that it may not. The essential role of the Attorney General is to perform his or her constitutional duty by acting as an attorney on behalf of the State and its interests - that is, to use legal judgment on matters of law. HB 89 is contrary to the exercise of the Attorney General's independent and constitutionally-grounded authority in Part II, Article 46 of the Constitution because it requires him or her to act without the ability to exercise independent legal judgment. The Bill is also an intrusion by the Legislature into an essential executive power and thus violates the Separation of Powers guarantee of the New Hampshire Constitution, Part. I, art.37.3 A. Violation of the Attorney General's Constitutional Powers in Part II, Article 46 Question 3 of Senate Resolution 9 asks whether HB 89 violates a provision of the Constitution other than Part I, Article 37. The former members of the Office submit that it does, since it is contrary to the authority and duties inherent in the constitutional office of the Attorney General as created by Part II, Article 46. In executing those powers and duties, the Attorney General must act within the sphere of action that may be taken in accordance with the good faith legal judgment of the State's lawyer, and indeed, only act in this way.4 He or she must be free to exercise the sound legal discretion and judgment required of all lawyers. New Hampshire's Attorney General is a constitutional State officer, subject to the nomination and appointment powers of the Governor and Council. N.H. CONST. pt.II, art.46; see also Opinion of the Justices,l l5 N.H. I59,16I (1975) (explaining that "the constitution provides for certain constitutional state offrcers," including the Attomey General). The existence of the office and the power to appoint its incumbent therefore lie beyond the reach of the Legislature. See id. The powers of the Attorney General in fulfilling this constitutionally mandated role are"broad and numerous." State v. Swift,l01 N.H.340,343 (1958). Some were incorporated from the common law, while others are specified by statute. Id; see also Eames v. Rudman, I 1 5 N.H. 91, 92 (197 5) ("The Attorney General has been held to have broad common law powers"); RSA 7:6 (cbargSng the Attorney General with representing the State in all causes in the New Hampshire Supreme Court "in which the state is interested."). However, to the extent that the Legislature may assign specific statutory duties to the Attorney General, they "in no way detract from his powers and duties at common law." Swift, 101 N.H. at343 (citing Fletcher v. County,7l N.H. 96, I02 (1958)); see also Attorney General v. Rochester Trust Co., 1 15 N.H. 74,76 (1975); Bokowsþ v. State, I 1 1 N.H. 57 , 58 (1971). The development of the Attorney General's common law duties predate the drafting of this State's Constitution, and it is well understood that these duties encompass a broad authority to represent the State's interest and the legal discretion to carry out that authority effectively and efficiently: The office of attorney general is older than the United States . . . . As chief legal representative of the king, the common law attorney general was clearly subject to the wishes of the crown, but, even in those times, the office was also a repository of power and discretion; the volume and variety of legal matters involving the crown and the public interest made such limited independence a practical necessity. Transposition of the institution to this country, where governmental initiative was diffused among the officers of the executive branch and the many individuals comprising the legislative branch, could only broaden this area of the attorney general's discretion. State of Fla.exrelShevinv.ExxonCorp.,526F.2d266,268(SúCir. 1976);see also State v. Lead,951 A.2d 428, 470-71 (R.I. 2008) ("The office of the Attorney General is an ancient one . . . [that] was transported to America in the early days of the established government in the colonies as part of their English derived common law."); People v. Miner,2 Larc. 396,398 (N.Y. App. Div. 1868) ("Most, if not all, of the colonies appointed attorney-generals, and they were understood to be clothed, with nearly all the powers, of the attorney-generals of England," including the duty to "prosecute all actions, necessary for the protection and defense of the property and revenues of the crown."). Sharing this common history, jurisdictions throughout the United States recognize that the Attorney General maintains exclusive authority over, and discretion in, litigation involving the State. As this Court has previously said, "the Attorney General . . . [has] broad authority to manage the state's litigation and to make any disposition of a case which he deems is in the state's best interest." Opinion of the Justices,l l7 N.H. 393,396 (1977); see also Feeney v. Commonwealth,3l3 Mass. 359,365 (1917) (explaining that the Attorney General has "[t]he authority. . . to assume primary control over the conduct of litigation which involves the interests of the Commonwealth."); Superintendent of Ins. v. Attorney General, 558 A.zd 1197, 7199-1200 (Me. 1989) (stating that the attorney general may "institute, conduct, and maintain all such actions and proceedings as he deems necessary for the enforcement of the laws of the State, the preservation of order, and the protection of public rights.") (Emphasis added). inherent in this authority is the ability to decide whether to commit the State to litigation and, thereafter, to exercise control over the course of such litigation. See, e.g., S.rfr,101 N.H. at 343; see also Lead,95I A.2d at 473 ("It is vital that the Office of the Attorney General have absolute control over the course of any litigation originating in that office."); Secretary of Admin. and Finance v. Attorney General,367 Mass. 154, 158-59,163 (1975) ("[T]he Attorney General . . . has control over the conduct of litigation involving the Commonwealth."). As evidence of the discretion vested solely in the Attorney General to represent the state, the Attorney General's judgment in connection with litigation cannot be delegated to the control of outside counsel; "rather, it is the outside counsel who must serve in a subordinate role." Lead, 951 A2d at 473, 476 (citing (Inited States v. Cox,342F.2d 767, Ig21Sú Cir. 1965)). In passing HB 89, the House of Representatives would strip the Attorney General of the legal discretion and broad authority to evaluate the State's legally reasonable options, as inherently vested in the office by the Constitution. To permit the Legislature to exercise total control over the actions of the Attorney General, in contravention of the traditional role of the Office as understood by the drafters of the State's Constitution, would diminish the constitutional authority of the Office to whatever level the politics of the day might choose to leave for it. This is not what the framers intended; by vesting the power to nominate and appoint the Attorney General solely in the hands of the Governor and Executive Council, the drafters demonstrated an intent to place the Office and the common law authority and obligation it comprises beyond the control of the Legislature.6 Indeed, because the Attorney General has the independent constitutional authority he exercises his authority beyond even the Governor's pleasure. Question 3 - whether HB 89 violates a provision of the Constitution other than Part I, Article 37 - should be answered in the affirmative. B. Separation of Powers Question 1 of Senate Resolution 9 asks whether HB 89 violates Part I, Article 37 of the New Hampshire Constitution. The New Hampshire Constitution, like that adopted in MassachusettsT (and drafted by John Adams), includes a specific provision concerning the Separation of Powers: In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity. N.H. CONST. pt. I, art.37. A history of the development of the doctrine of separation of powers as it came to be enshrined in the New Hampshire Constitution, and recognized implicitly (although not stated explicitly) in the United States Constitution, is well beyond the scope of this memorandum, for as one commentator has noted, "the literature on separation of powers is enormous." Gordon Wood, The Creation of the American Republic, 1776-1787,15L fî.44 (W.W. Norton & Co. 1969). Suffice it to say that "the reasons for this separation of governmental departments . . . when the constitution was founded . . . were urgent and insistent," and "Historical antecedence and political philosophy made the demand for them imperative." Opinion of the Justices,87 N.H. 492,493 (1935). The doctrine's pedigree includes the English Revolution in the l7ú Century, the essays of Montesquieu, and the writings of Madison and Hamilton in The Federalist, and the very plurality of sources helps to explain why "Perhaps no principle of American constitutionalism has attracted more attention than the separation of powers." Wood, supra at 1 5 1 .8 Although the main concern animating the initial formulation of the doctrine related to the powers of the King and the executive branch, the doctrine developed in America recognized that "power in the hands of the people's 'immediate representatives' in the lower houses of the legislatures was basically no different, no less dangerous, than power in the hands of senators, governors and judges." 1d. at 453, citing the Portsmouth, New Hampshire Herald Gazette, March 15, 1783. In 1781, the New Hampshire Constitutional Convention described the issue as follows: The love of power is so alluring that few have ever been able to resist its bewitching influence. Wherever power is lodged, there is a constant propensity to enlarge its boundaries. A despotic government is that where any man, or set of men, have the power of making what laws they think proper or executing them in their own way.... Is it possible that Europe, or even Asia itself, can present a more perfect tyranny? Wood, supra at 447, citing Address of the N.H. Convention, Boutin et al., State Papers of N.H., IX, 846; see also Attorney-General v. Morin,93 N.H. 40, 46 (1943). "With reference to the purpose of fpart I, article 371, it should be remembered that during the American Revolution, many executive and judicial powers were exercised by the legislature, and this practice resulted in great dissatisfaction." State v. LaFrance,l24 N.H. 171, 176 (1983). Hence, Article 37 was adopted to protect the executive and judicial branches of the State government from legislative encroachment. Id. (citing Morin,93 N.H. at 46); see also Opiníon of the Justices,l18 N.H. 582, 585 (1978) ("The principal purpose of part I, article 37] is to protect each of the three branches by encroachment of the others. As applied to the executive, its primary purpose is to protect it from legislative encroachment. "). The framers of Part I, Article 37 recognized that "a complete separation of powers would disrupt the efficient operation of government," Petition of Mone, 143 N.H. 128,134 (1998), and this Court recognizes that the Constitution permits an overlapping of powers among the branches in certain areas. Opinion of the Justices,129 N.H. 714,717 (1987); see also Opiníon of the Justices, 1 13 N.H. 287 ,290,306 A.2d 55, 57 (1973). However, when one branch of government improperly imposes itself upon the essential, constitutional duties belonging to another, or encroaches upon the constitutional function of another branch of government, Part I, Article 37 is violated. See Opinion of the Justices,1l0 N.H. 359,363-6a 0970); see also Opínion of the Justices,l17 N.H. 398,402 (1977); LaFrance,124 N.H. at 116; N.H. Health Care Assoc. v. Governor,16l N.H. 378, 385-86 (2011). Cases in which the duties of the branches of government overlap may present great difficult¡ but the questions presented here do not. This is not a close call. Here, HB 89 would require the Attorney General in the executive branch to follow the political view of the legislative branch by adopting the specific position taken by particular parties in a particular case concerning a particular law. It is hard to imagine a greater intrusion on the constitutional role of the executive office, or a clearer infringement of its essential authority within the power of the executive branch.e If an intrusion into the ability of the Attorney General to exercise good faith legal judgment should be permitted, there is no way to tell how far down the steep slope such intrusions could go. Only a few examples are necessary to demonstrate this obvious point, and to show the difference between HB 89 and other instances in which this Court has assessed the constitutionality of proposed legislation under the Separation of Powers provision. First, if the current Legislature could require the Attorney General to take one position with respect to the PPACA, a different majority in the next Legislature could require him or her to take just the opposite position. Such a regime would turn the court systern into a crude register of momentary political wind velocity.lo While it is true that the State's legal position as asserted by the Attorney General may change when the individual holding the office changes, those changes of course can be made without compromising the integrity of the State's lawyer in the courts in which the State litigates. Lawyers, after all, can reasonably disagree in good faith about the meaning of constitutions, statutes and the case law, and about the likely consequences of a piece of legislation. While it is true that legal disagreement may be reflected in politics, that fact does not legitimize the substitution of politics for legal disagreement. Second, if the principle of separation of powers allows the Legislature to mandate a particular action in a matter subject to the Attorney General's professional discretion, the Legislature surely may constrain the actions of the Governor as well. There would be no reason, for example, that the General Court could not require the appointment of a particular individual to a particular government office, yet this Court has determined that neither the Legislature nor the courts may mandate the Governor to act in areas within the power of his office where he or she otherwise has discretion to exercise. Brouillard, 114 N.H. at 544. This will no longer be the law if HB 89 is constitutional. Third, if the exercise of legal action by the Attorney General may be mandated in civil cases, that same process could require the prosecution of specific individuals for alleged violations of specific criminal If the Attorney General may be ordered to be a plaintiff suit a political majority¡ the same majority may order the Attorney General to prosecute whoever it chooses. As Thomas Jefferson wrote in 1782, "[a]n elective despotism is not the government we fought for." Wood, supra at 452 (citing Jefferson, Notes on Virginia). Finally, it is worth a hard look at the possible consequences of HB 89 itself, which could force the current Attorney General to commit the executive power to advancing meritless positions. At present, since challenges to the PPACA have produced different results, it is not likely that a challenge to the federal statute would be ethically frivolous per se as executive action. But what if the Attorney General determines that particular positions asserted in the Florida action are meritless? Under HB 89, notwithstanding those problems, the Attorney General would nonetheless be required to continue to commit the State to the plaintiff s position in the case. HB 89 provides no room for a determination by the Attorney General as to whether the claims and contentions in the Florida lawsuit have been or may be asserted on behalf of the State in good faith or whether a different position, or a different lawsuit, has more merit. Other parties and other attorneys general who have brought or joined that lawsuit may disagree, but the New Hampshire Attorney General must decide the path to take for this State, and must do so based on his view of the law, not on legislative politics or the popularity of a cause. This is not to say that the Attorney General is unconstrained by law to assert positions with which he may disagree at a political level. For example, RSA 7:9 provides that "the governor and council may, in any action or proceeding, wherever pending, represent to the attorney general that he should appear in the interests of the state or of the people and thereupon it shall be his duty to appear." While the Governor and Council may require the attorney general to appear in an action, the difference between the statute and HB 89 demonstrates precisely why HB 89 goes too far in intruding on the exercise of his discretion. First, the Attorney General serves as the lawyer for the executive branch of government. The Governor and Council are his clients and may direct his actions, provided that the Attorney General believes there is a good faith basis as a matter of law for asserting or defending a position. RSA 7:9 permits a direction to the Attorney General by the executive branch - by his clients - not an intrusion by a separate branch. But even more important, the statute does not require that the Attorney General, even when directed by the chief executive branch authority, take any particular position other than to "protect the interests of the state." It does not require that he appear as a plaintiff or defendant, or even as a party to the action, but only that he "appear." As a result, it leaves to the Attorney General the authority to determine the position he may ethically take (or not take) and the proper way to assert that position, and thus does not usurp or materially interfere with the exercise of his legal role.t2 The Legislature has the power to set policy for the State by legislative action but, without amending the Constitution, it may not do so by invading the essential powers of other branches by exercising the constitutional discretion of a member of the executive branch. Where the Legislature sets policy through enactment of the laws, the Attorney General is obligated to defend the law if he or she believes that a non-frivolous argument can be made for its constitutionality. But the Attorney General has discretion to decide how to defend the laws under the Constitution and whether they are defensible. The fundamental problem with HB 89 is that it requires a politically determined action by the State's chief legal officer within the executive branch without room for the exercise of legal judgment. Accordingly¡ Question 1 should be answered in the affirmative.


    The former members of the Office are proud that in their service to the State, whether or not they agreed with the actions of the Governors under whom they served, or with legislative policy adopted during their terms of office, they were never confronted by political dictation in making decisions as lawyers. There was, rather, an understanding that the Attorney General was obligated to exercise a lawyer's professional and ethical discretion in deciding on positions to be taken. That understanding, along with the Attorney General's reciprocal obligation to defend state officers and legislation, has shown how the Constitution was meant to produce that "union and amity" that is its object. Needless to say, there were controversial decisions made by Governors or state officers, and controversial statutes passed by the Legislature with which attorneys general may have disagreed. But so long as they could honor their obligation to take discretionary action in good faith, and so long as they could invoke a good faith legal basis to support those actions and statutes, they understood that it was their duty to do so. The role of the Office - and the standard by which the Attorney General must act - was stated by then Attorney General David H. Souter in 1978, in response to a complaint about the Office's defense of Governor Thomson's act of lowering the flag to half-staff on Good Friday: You asked "whether there is any chance that the Attorney General's office will use some discretion in deciding whether or not to defend the Supreme Executive Magistrate on matters concerning his personal preferences regarding the height of the United States Flag?" I take it you refer to the defense in judicial proceedings brought to challenge the Governor's actions in displaying the flag at half-staff in particular circumstances. The answer is, sure there is going to be some discretion, and I assume the discretion will be exercised on the same criterion I have used. My standard, in flag cases and any others, has been simply this: this office will represent any governor in any proceeding brought against him in his official capacity whenever his action can not reasonably be judged patently illegal or unconstitutional. If, as I believe, the Attorney General should act as a lawyer guided by generally applicable principles, I don't believe any other standard is possible. The alternatives seem to me to be an Attorney General who is a political rubber stamp or one who is a political spokesman for political opposition to the Governor. I find each alternative unacceptable. Letter from David H. Souter to Robert Backus dated March 30,1978. By preventing the Attorney General from acting "as a lawyer guided by generally applicable principles" and by mandating that the Attorney General adopt a political position of the Legislature, regardless of his or her determination as a lawyer of what is right as a matter of law, HB 89 is unconstitutional. Respectfully submitted, WARREN B. RUDMAN, THOMAS D. RATH, GREGORY H. SMITH, STEPHEN E. MERRILL, PHILLP T. MCLAUGHLIN, PETER W. HEED JOHN AHLGREN, PETER G. BEESON, GEORGE DANA BISBEE, V/ILBUR A. GLAHN, III, EDWARD A. HAFFER, LUCY C. HODDER, MARTIN B. HONIGBERG, HAROLD T. JUDD, STEPHEN J. JUDGE, CHARLES J. KEEFE, E. TUPPER KINDER, JOHN C. KISSINGER, ANN F. LARNEY, KAREN A. LEVCHUK, PAUL A. MAGGIOTTO, DANIEL J. MULLEN, DONALD J. PERRAULT, MICHAEL A. PIGNATELLI, CHARLES PUTNAM, BRIAN M. QUIRK, EMILY GRAY RICE, RONALD F. RODGERS, JAMES D. ROSENBERG, MARC R. SCHEER, and MARTHA VAN ooT Footnotes I It is unclear why the House of Representatives chose the Florida lawsuit, State of Florida, by and on behalf of Bitt McCollum, Attorney General v. United States Dept. of Health and Human Services, No. 3:10-cv-0009I-RVÆMT (N.D. Fla. Pensacola Div.) (on appeal to the Eleventh Circuit) as the vehicle by which the Attorney General would be required to advance the position formed by a majority of the General Court. While this memorandum argues that the General Court has no constitutional authority to require the Attorney General to exercise his legal judgment in a particular manner, there are a number of pending lawsuits challenging the constitutionality of the PPACA. (A listing of these cases may be found on the website of the United States Department of Justice, The choice by the House of a particular lawsuit is a further indication of an effort to usurp the authority of the Attorney General to exercise his independent professional judgment as the lawyer for the State. 2 The lawyers whose names appear on this memorandum are representing themselves. They are not appearing on behalf of any client, advocacy group, or political party, nor are they being paid for their work on this memorandum. 3 Question 2: in the Senate Resolution asks for an opinion on whether the direction to the Attorney General "fall[s] within the broad grant of authority to the general court set out in Part II, Article 5 of the New Hampshire constitution." This simply begs the question of what constitutes the essential functions of the Attorney General and the Legislature. Plainly, if the General Court does not have the power to direct the conduct of legal proceedings for the State, its power under Part II, Article 5 cannot somehow trump the duties given to the Attorney General under Part II, Article 46. That is precisely what the separation of powers provision prevents. 4 HB 89 might, quite apart from the Constitution, require the Attorney General to act contrary to his ethical duties and obligations as a lawyer. Rule 3.1 of the New Hampshire Rules of Professional Conduct, entitled "Meritorious Claims and Contentions" provides, in part, as follows: "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law." s The fact that the House of Representatives chose to pass HB 89 as a means of challenging the PPACA is telling. Nothing prevents the House from hiring its own lawyer to challenge that Act, whether in New Hampshire, or in Florida. What HB 89 implicitly recognizes is that only the Attorney General has the power to bring an action or apear in court on behalf of the State ofNew Hampshire. It seems likely that the House wanted the imprimatur of the State of New Hampshire in this action. The only way to accomplish that result was to find a way to force the involvement of the Attorney General. The very existence of HB 89 is evidence of the authority of the Attorney General to act as the State's lawyer. 6 Cf Me CONST, art. IX g 1l (prescribing the biennial selection of the Maine Attorney General by joint ballot of the state's senators and representatives in convention). 7 PartI,Article 30 of the Massachusetts Constitution ("separation of legislative, executive and judicial departments") provides : In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men. E For a description of the development of the doctrine in colonial America and its revision in the doctrine of federalism, see Vy'ood at 150-161 and 446-453 and the extensive sources cited therein. n Iß 89 is essentially a mandamus action disguised as a legislative action. (Indeed, as shown elsewhere in this memorandum, a mandamus action was brought in another state in an effort to force the Attorney General to withdraw from a suit challenging the PPACA.) This Cou¡t has consistently held that a mandamus action will not lie to force the exercise of discretion by a government official. Rockhouse Mountain Property Owners v. Conway,127 N.H. 593 (1986) (layout of roads is a discretionary function preventing mandamus); Brouillard v. Governor and Council, 1 14 N.H. 542 (197 4) (the power of appointment to executive branch positions requires the exercise of discretion preventing the issuance of a writ of mandamus). In Brouillard,the Court noted that a petition for a writ of mandamus against the Governor may implicate the separation of powers doctrine where the action sought may intrude on the discretion of the Governor to act regarding the essential powers of the office, citing Rice v. Draper, 207 Mass. 57'7,93 N.E. 821 (1911). In Rice, the Supreme Judicial Court found that a mandamus could not be used to force the Governor to exercise his discretion to expend state funds because that function was "essentially executive," and the issuance of the writ would "not only question the wisdom of the Constitution or the law, but also to assert a right to make the Governor the passive instrument of the judiciary in executing its mandates within the sphere or his own duties." Rice,207 Mass. at 580. Here, the House seeks to mandate that the Attorney General act in an area of his essential power granted under Part II, Article 46; namely, to act as a lawyer and to determine what position may be t¿ken in good faith in legal matters. That power is equally protected by separation of powers law, whether asserted through mandamus or by legislation. r0 This is not a merely hypothetical possibility. In the state of Washington, the City of Seattle has filed a petition of mandamus to force the Attorney General to withdraw from a lawsuit challenging the PPACA. Not surprisingly, the Attorney General of Washington has argued that as an independent constitutional officer under that state's constitution, he has the authority to "exercise independent legal judgment in determining whether to institute legal proceedings implicating the legal rights of the State." See Brief of Robert M. McKenna in the Supreme Court of Washington, City of Seattle. McKenna,Attorney General, No. 8,1483-6. tt RSA 7:6 provides that the Attorney General "shall have and exercise general supervision of the criminal cases pending before the ... courts of the state and with the aid of the county attorneys, the attorney general shall enforce the criminal laws of the state." Of course, the Legislature has the power to determine what constitutes a crime and the form of mandatory punishment for the crime. As an example, the Legislature establishes what constitutes capital murder and the punishment for that crime. This it is plainly permitted to do. What it may not do is invade the province of the Attorney General to decide which cases to prosecute as capital crimes, or of the Courts to decide whether the prosecution is merited. t' RSA 7:8 requires that the Attorney General "shall, when requested, advise any state board, commission, agent or officer as to questions of law relating to the performance of their duties." Yet like RSA 7:9, that statute does not interfere with the Attorney General's discretion to decide what advice to give or to determine whether the opinion requested is on a matter of law relating to the performance of state duties.
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