This is the old version of the H2O platform and is now read-only. This means you can view content but cannot create content. You can access the new platform at https://opencasebook.org. Thank you.
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 globrix.com to buy or rent UK property.
© Copyright 2008 Times Newspapers Ltd.