I posted yesterday my thoughts about whether Attorney General JB Van Hollen had breached the lawyer ethics rules in his representation of Douglas La Follette. A local lawyer friend has now informed me of a Court of Appeal's decision, Lake Beulah Management Dist. vs. State Department of Natural Resources, 327 Wis 2d. 222, 787 N.W. 2d 926 (Wis. App 2010). My friend had read my critique of the position of Deputy Attorney General St. John in a letter turning down the requested representation of Peter Barca in the Ozanne lawsuit. Mr. St. John took the following position in his letter:
Last, we wish to make clear that this conflict is not because legislative defendants are of a different party or because Mr. Barca or Mr. Miller may wish to proceed on a separate legal theory. They would not have the right to do so. As I am sure you are aware, the Attorney General's representation of state officials in this capacity is not like a typical attorney-client relationship. The Attorney General has the authority to control such litigation, including the right to compromise or settle matters, as he determines to be in the best interest of the state, not individual defendants. (Emphasis added.)Wis. Stats., sec. 165.25(6) reads:
At the request of the head of any department of state government, the attorney general may appear for and defend any state department, or any state officer, employee, or agent of the department in any civil action or other matter brought before a court or an administrative agency which is brought against the state department, or officer, employee, or agent for or on account of any act growing out of or committed in the lawful course of an officer's, employee's, or agent's duties. Witness fees or other expenses determined by the attorney general to be reasonable and necessary to the defense in the action or proceeding shall be paid as provided for in s. 885.07. The attorney general may compromise and settle the action as the attorney general determines to be in the best interest of the state.What I view as an overly expansive reading of 165.25(6), expressed in the portion of Mr. St. John's letter quoted above, doesn't square with the position the AG took in the Lake Beulah case.
In the Lake Beulah case, the issue was whether the DNR had followed its statutory authority and adminstrative rules in granting permits to the Village of East Troy for certain high capacity water wells that the Lake Beulah Management District felt would adversely impact the levels of the lake. The Attorney General was of the view that the conduct of the DNR with respect to issuing the permits could not be defended under the statute. Thus the Attorney General chose not to provide representation to the DNR in defending the action brought by the Lake Beulah Management District against the department. The Court of Appeals noted in a footnote, the unusual situation where the Attorney General was not appearing in court in defense of a state department.
As a practical matter, the situation whereby the DNR's own attorney represents the agency in a case such as this is unique. Normally, the Department of Justice has the duty to represent the DNR pursuant to Wis. Stat. § 165.25. However, the DOJ refused to represent the DNR in the instant case because it disagreed with the DNR's grant of both the 2003 and 2005 permits. Thus, the agency's own attorney was the attorney of record for the DNR.As my friend pointed out to me, if the Attorney General's reading of sec. 165.25(6) as stated in the letter of Mr. St. John turning down Rep. Barca's representation is really the AG's interpretation of that statute, there would have been no reason for the Attorney General to bow out of the Lake Beulah case because his view of the defense differed from the DNR's view. According to Mr. St. John, the view of the department or officer being defended by the AG doesn't matter to the AG, since it always has the last word on what defense posture is in the best interest of the state.
Here's the analysis from my friend's email, which may make the argument clearer, as he is smarter:
I continue to question whether the AG violated the ethics rules in disregarding Doug La Follette's desires as to how his defense should be handled, and by failing to properly consult with Mr. La Follette.I don’t believe even JB Van Hollen would take the position that the AG has the power, over the objection of the client officer or agency, to make policy decisions on behalf of the agency. Interestingly, in Lake Beulah Management Dist. v. DNR, 327 Wis.2d 222, 787 N.W.2d 926 (Ct. App.,2010), the AG refused to represent the DNR because, the Court of Appeals noted, he disagreed with the substantive position of the DNR. If he has the power under 165.25 to control the client’s goals in litigation, why would he not have agreed to represent the DNR and then stipulate that the challenged permits issued by the DNR were improper? All he would have had to say is that is in the best interest of the state.
I think Van Hollen did the right thing and declined the representation because of the conflict between his own personal views and the legal position of his client [the DNR]. Seems like the same decision should have been made here [in the Ozanne vs. La Follette matter].
The Secretary of State is a constitutional officer. Even if the Legislature intended by 165.25 to allow his policy judgment to be overruled by the AG, I wonder whether it could constitutionally do that.