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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.
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June 25, 2013

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