WASHINGTON, May 21 (UPI) -- State attorneys general have assumed too many powers in recent years, jeopardizing the rule of law and weakening the separation of governmental powers established by the Constitution, according to a new think tank report.
They have acquired these extra-constitutional powers by prosecuting and negotiating settlements in frivolous class action lawsuits, said Michael DeBow in "Restraining State Attorneys General, Curbing Government Lawsuit Abuse," published by the libertarian Cato Institute.
The personification of lawsuit abuse, DeBow said, is found in the 1998 case in which states sued tobacco companies for reimbursement of Medicare costs associated with chronic smokers. The judgments were legally spurious, he said, in spite of favorable terms received by the tobacco companies.
The settlements led to an increase in cigarette taxes and created new law, two things under the jurisdiction of state legislatures, not attorneys general. One of the consequences of this kind of lawsuit abuse has been to turn attorneys general into what DeBow called "one-man legislatures."
Several state legislatures have even confirmed these new powers by refraining from interfering with, or legislating in favor of, their attorneys general, he said.
"It is safe to say that all 50 state legislatures had a large number of members -- likely a majority -- who enjoyed very much spending the windfall from the tobacco settlement, particularly since they did not have to cast a politically accountable vote in favor of the hidden tax increase on cigarettes that the settlement entailed," he said.
The accumulation of additional powers is understandable since attorneys general are given broad, common-law powers and are expected to work for the public interest. However, it is the office holder who interprets what the public interest is.
DeBow says state legislatures would do well to eliminate these broad powers and return the office to its historic role.
"The state (attorney general's) chief tasks (have included) providing legal advice to the governor and state agencies, coordinating the legal positions asserted by state government in litigation, and rendering advisory opinions to other organs of state government," he said.
The question is certainly a constitutional one, according to Robert Bork, former U.S. solicitor general and a fellow at the conservative American Enterprise Institute.
However, he said it remains to be determined whether the powers were always there.
"(The attorneys general) are exercising more power. I don't know if the power was there before, unexercised, but they are exercising more," Bork said. "And in many cases it is a very bad thing."
Bruce Reed, president of the Democratic Leadership Council, which is affiliated with the liberal-leaning Progressive Policy Institute, said state attorneys general have not assumed too many powers, but that they are simply acting in areas where there is an absence of national leadership.
"I think that where there are areas of national consensus, I think there deserves (to be) national action, and the Congress and administration should take it," Reed said. "As long as the Congress and the administration do not pass HMO (health maintenance organization) reform and tobacco legislation that ... has broad support everywhere else but Washington, we can't fault state leaders for getting things done at the state level."
The position of attorney general is unique because it does not have two checks on its power, said Martha Darthick, professor emeritus of government at the University of Virginia, and author of "Up in Smoke: From Legislation to Litigation in Tobacco Politics." While attorneys general are held accountable in most states to the citizenry that elects them, many attorneys general are not held accountable by other branches of state government because they have already assumed most of those powers as well.
Darthick, who served as the head of governmental studies at the centrist Brookings Institution during the 1980s, favors reform but is skeptical about what that might entail. When addressing lawsuit abuse, she said reform is best left to state legislatures.
DeBow, on the other hand, advocates congressional passage of the Litigation Fairness Act, which would make state governments subject to the same laws their citizens must adhere to when filing lawsuits.
This type of equality under the law did not happen during the tobacco litigation, because an individual who knowingly put his health in jeopardy would have a groundless lawsuit if he tried to recoup money for his lost health. The government, however, forced tobacco companies to settle a case that would have been thrown out of court if it had been the private citizens who sued.
Not only was the tobacco settlement questionable, but the state attorneys general used illegal tactics when prosecuting the case, according to Todd Gaziano, director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation.
Gaziano said attorneys general actually formed an illegal cartel when they collectively sued the tobacco companies.
"Even though they were the primary protectors of the consumers ... they were the primary violators of anti-trust laws and principles," Gaziano said. "They knew to a moral certainty that there was no net cost to the state health care system and that new taxes more than paid for out-of-pocket costs. They knew or should have known that deadly tobacco mortality rates actually relieve states of other economic burdens (when smokers die)."
Bork agrees that the tobacco suit had no legal merits, and judges should have dismissed it.
"I think all of those lawsuits are scandals since all of these states and the federal government knew the dangers of tobacco but allowed it to be sold, taxed it, benefited from it and then after the risks -- that they knew were there -- came to be, then they sued and (blamed the tobacco companies)," Bork says.
Unless their powers are curbed, it is a virtual certainty that state attorneys general will continue with this lawsuit abuse in the future, DeBow said. Some comparable lawsuits in recent years were filed against lead paint manufacturers, makers of firearms, and health maintenance organizations. Potential targets include the alcoholic beverage industry, automobile manufacturers, and pharmaceutical makers.
Political aspirations of attorneys general and the greed of trial lawyers complemented each other in such suits, Gaziano said.
An example of the political profit sought by attorneys general in these cases is shown by the favorable deals granted to the private trial lawyers who helped the states prosecute cases.
The sheer cost of the lawsuits and manpower needs prompted most states to work with private lawyers who would get paid only if the state won. When the states settled, many of those lawyers received hefty profits -- upwards of $100,000 an hour, according to Gaziano.
According to DeBow, private lawyers will receive approximately $13.75 billion in contingency fees during the first 25 years of the tobacco settlement payouts, which end in the year 2023.
Gaziano also said attorneys general received political contributions in return. He agreed with DeBow that contingency fees should be eliminated altogether.
"There is no reason why a state (attorney general) ought to be giving licenses to get rich to individuals who are well-connected members of the plaintiff tort bar (and) have given them contributions," Gaziano said.
Reed disputes that there is a conflict of interest between trial lawyers and state attorneys general, and says some lawyers received exorbitant payments because they did not know what the final settlement would be.
"Some states could have done a better job in designing their contracts with private lawyers going into the tobacco suits," Reed said. "Most states were careful in putting limits in what the lawyers could earn, but I don't think it is a chronic problem.
"I think a few states that launched the first lawsuits didn't anticipate that the industry would settle for such a high price," said Reed. "I think some lawyers should have been happy to walk to away with a lot less, even though some held out for more than they should have, longer than they should have. I don't think that is likely to happen again."