An attorney for the people, or an attorney for the state?
As we head toward primary season in the attorney general race in both parties, candidates are saying they’ll use the office to fight – or support – Donald Trump. One Democrat says he would be “first in line” to challenge the “Concealed Carry Reciprocity Act” if it passes Congress. Another promises to sue payday lenders under Dodd-Frank if Trump fails to act. Meanwhile, in the Republican primary, one candidate says the race is “critical to #MAGA,” tagging the President’s Twitter account.
But setting Trump aside for a moment, there are many roles of an attorney general that are not so sexy and not clear cut. These are the cases where an attorney general is an attorney for the state, tasked with defending the state, often in lawsuits brought by the most vulnerable members of our society. I’ll give two examples, out of many.
Candidates in both parties will be seeking votes from cities like New Haven, Bridgeport, Hartford, Waterbury, New Britain, Danbury, New London, and Windham. These same places were the focus of a 15-year lawsuit by the Connecticut Coalition for Justice in Education Funding (CCJEF) that alleged that they are systematically underfunded by the General Assembly, depriving their children of their right to an adequate and equitable education under the Connecticut Constitution.
The key obstacle to a ground-breaking ruling that Connecticut’s education funding shortchanges our children and violates the state constitution? The attorney general’s office, which appealed a 2016 victory for the school funding coalition and got the case thrown out by the Connecticut Supreme Court.
The AG’s office could have refused to defend Connecticut’s unconstitutional education underfunding. There’s precedent: what President Barak Obama and Attorney General Eric Holder did when asked to defend the unconstitutional Defense of Marriage Act (DOMA). Obama and Holder left the defense of DOMA to the Republicans in Congress who still supported it. Connecticut Attorney General George Jepsen could have left the defense of inequitable and inadequate education funding to towns like Greenwich and New Canaan that benefit from the current system.
At least one candidate for AG this year suggested this advocacy while he was running (he has since dropped out). Voters in Connecticut’s cities should ask where the candidates stand on their children’s right to an adequate and equitable education.
People who are incarcerated
The most common type of lawsuit in federal court are lawsuits by people who are incarcerated challenging mistreatment they have faced in prison. The attorney general defends the state in these lawsuits.
When people who are incarcerated seek justice, too often, the attorney general stands in the way. Ronald Nussle sued the State of Connecticut after correctional officers allegedly “placed him against a wall and struck him with their hands, kneed him in the back, . . . pulled his hair . . . [and] the officers told him they would kill him if he reported the beating.” His case was thrown out on a technicality because he failed to file an internal grievance at the prison against the correctional officers, instead directly filing a claim in federal court.
When the Second Circuit Court of Appeals reinstated Nussle’s lawsuit, the AG’s office appealed to the Supreme Court, demanding that they throw it out again. (The attorney general could have abided by the Second Circuit’s ruling, which was supported by rulings in other states.)
The result? A ruling that all prisoners’ cases should be thrown out when an internal grievance isn’t filed first — even when a prisoner alleges a beating by correctional officers and threatening pressure to remain silent. The Attorney General’s office still brags that it “won” this Supreme Court case online, “reducing the number of inmate lawsuits,” but for people who are incarcerated and facing injustice without redress, this was a loss.
Conclusion: ask about the issues
Candidates for AG will continue talking about Trump — whether they support him, oppose him, or something in between. And they should. But voters should be asking: when it comes to children struggling to receive an adequate education, or people who are incarcerated seeking to correct an injustice, will you be an attorney for the people, or an attorney for the state?
Alexander T. Taubes is a Thomas Emerson Fellow at the David Rosen & Associates law firm in New Haven.