Law School of Harvard University / 2019-2020

The Role of the Attorney General Fall 2019

Professors Peter Brann and James Tierney Available for download: December 9, 2019

Must be electronically submitted by: 8 hours from download or by 4:30 pm on December 18, 2019, whichever is earlier.

Instructions

The exam mode for this examination is TAKEHOME. Students will be able to download the question beginning at 12:30 am on December 9, 2019, until December 18, 2019. Once you view the questions, you will have 8 hours to submit your answer. All four questions are equally weighted. There is a 4,000 word limit for the entire exam.

This exam is 11 pages long – including these cover instructions. Please check to see that you have all 11 pages. Please read these instructions and the entire exam carefully before beginning a response.

While taking this examination you may consult any materials that you are able to access, including the assigned course materials and any of your own or other class member’s outlines or notes. You may engage in legal research if you believe it to be relevant to your answers, but this is not an exam about the proper resolution of a legal issue, and thus such legal research is discouraged. Your answer must be entirely your own work. You may not discuss the examination with anyone until after the end of the exam period.

In answering these questions, you should refer to what you have learned in this class, including statutes, structure, ethics, statutory powers, common law authority, the relationship with other governmental agencies, and available resources. Do not exclude information learned in other classes or from your own life experiences.

Unless instructed otherwise, in answering the questions, assume that you are operating within States where the generic chart defines the organizational structure of the Office of Attorney General. In each State, the State Supreme Court has not yet ruled definitely whether that State is a Feeney State or a Deukmejian State.

While the questions contain all of the facts required to respond, your answer may include the need for verbal communications, investigations, or informal meetings that might uncover other additional facts. As long as you clearly state the facts that you are assuming or relying upon, feel free to incorporate them into your answer.

Be mindful of existing expertise and resources within other state and federal governmental agencies, as well as the private sector, academia, and the private bar. As we have discussed, simply because the Attorney General has jurisdiction does not mean that the office is the only agency capable of addressing the situation. If you believe that political issues are relevant, feel free to address them and afford to them what weight, if any, you deem appropriate. Please remember that this class has been about law and policy, but not politics.

Try not to use the word “however.” (This is a pet peeve of Professor Tierney.

Professor Brann, however, does not share this concern.)

End of Instructions

Questions

1.                   You are the Chief Deputy Attorney General of the State of Winthrop. In passing, the Attorney General says to you, “This college admissions scandal really ticks me off. Hollywood celebrities and hedge fund managers buying their kids’ way into elite colleges, and then getting just a wrist slap in federal court. Isn’t there anything we can do about this?”

One of the schools implicated in the media accounts of the scandal is Ivy College, located in the State of Winthrop. According to media accounts, the sailing coach helped several non-sailors gain admission in exchange for “donations” to the sailing program.

You need to develop recommendations for the Attorney General as to what to do

— if anything because the U.S. Attorney is already pursuing the matter — so you convene a meeting with the Deputy Attorneys General in charge of the following divisions in the office: Public Protection, Criminal, and Charities.

A.                The Deputy Attorney General in charge of the Public Protection Division, Joe Martinez, speaks up first. “I’m glad you set up this meeting. I was just about to come tell you about an investigation that I started. This scandal is a lot bigger than a few non-sailors getting into Ivy College.” Surprised that Martinez had launched an investigation of this size without your knowledge, Martinez describes the following.

Martinez has a daughter, Martina, who is a high school senior. When she took the SAT, like virtually everyone else she checked the box that allowed the College Board to share her scores and other information with colleges that might be interested in them. Martina received solicitations from at least six elite schools, including Ivy College, encouraging her to apply because she “would be a really strong candidate” based on her “great grades and test scores.” She did, in fact, apply only be rejected by all six schools. According to published reports, the College Board sells student names to colleges for $0.47 apiece, and colleges can request names with certain SAT test score ranges. The College Board sells millions of names of prospective students to colleges all across the country. It turns out that Martina’s SAT scores were below the average score of students admitted to Ivy College, as well as the other five elite schools, and that having hundreds, if not thousands, of such students apply and be rejected made Ivy College and the other elite schools look more selective, which, in turn, boosted their

U.S. News college rankings.

“I thought that it was unfair and deceptive for Ivy College to recruit students like Martina on the promise that they want them, and then dump them by the side of the

road just to make themselves look more selective, so I sent Ivy College a civil investigative demand to find out about their admissions practices,” Martinez continued. “I am really looking forward to prosecuting this case.”

What do you do and say in response to this?

B.                    The Deputy Attorney General in charge of the Criminal Division, Donna Price, chimes in next. “As everyone knows, I am a proud graduate of Winthrop State University and its law school, and I am sick and tired of these elite school graduates looking down their noses at people like me who worked their way through state schools and are just as good a lawyer as they are. I have always thought that the people who got into Ivy College were rich kids whose parents bought their way in, so I don’t find this scandal at all surprising.”

“I am outraged that these Hollywood celebrities and hedge fund managers aren’t getting serious jail time in federal court for their actions,” Price continued. “But I am not shocked because these federal prosecutors and federal judges all went to the same elite schools, and they don’t want to do anything to upset the apple cart.”

“If we want to achieve real justice,” Price explained, “we should charge these people with violating Winthrop’s state criminal laws in Winthrop state court, and let them find out how buying admission to Ivy College plays in front of a Winthrop state jury.” (For purposes of this question, accept that the Supreme Court upheld the dual sovereignty doctrine recently in Gamble v. United States, and thus the State could file separate charges notwithstanding the federal prosecutions.) “I am really looking forward to prosecuting this case.”

What do you do and say in response to this?

C.                 You point out that Ivy College is a non-profit corporation subject to the oversight and supervision of the Attorney General, and you ask what the Charities Division can do in this regard. The Deputy Attorney General in charge of the Charities Division, Samuel Wright III, responds: “Nothing.” You are surprised a bit by this response, but then you remember that Wright was a lacrosse star at Ivy College, and his father and grandfather had also attended Ivy College.

What do you do and say in response to this?

2.                   You are an Assistant Attorney General in the Civil Litigation Division for the State of Quincy. You generally handle constitutional and election challenges filed against the State. You serve at the pleasure of the Attorney General and have been in the office for over 20 years.

Next year’s U.S. Senate race in Quincy is going to going to be a major donnybrook. The incumbent is retiring, and the two major party candidates likely are going to be the current Governor, Barbara Phillips, and the current Attorney General, Jeff Haley. Both Phillips and Haley are certain to run because their terms run until 2022, and thus, whoever loses the Senate race will continue to be Governor or Attorney General. Phillips and Haley are currently polling neck-and-neck.

Enter Rachel Devers, who just announced her candidacy for U.S. Senate as an independent. Pundits think that she is more likely to draw votes from the Governor than the Attorney General, which could be enough to tip the election. Unfortunately for her, the deadline to submit signatures to qualify for the ballot as an independent is substantially earlier than that of major party candidates, as well as similar deadlines in most other States, and the filing deadline has already passed. Accordingly, Devers has filed a constitutional challenge to the early deadline, but because she is running her campaign on a shoestring relying exclusively on social media, she has filed her lawsuit pro se. In your review of the applicable law, you believe that it is slightly more likely than not that the early deadline is unconstitutional. (For purposes of this question, don’t be concerned with the many cases discussing the constitutionality of election deadlines.)

A.                You have barely finished reading the relevant cases when your boss the Attorney General summons you to his ornate office to discuss the case. What do you do in response to that request?

Assuming that you meet with the Attorney General, Haley asks you what is the likelihood that a court will strike down the early signature deadline, and you tell him that it is slightly more likely than not, i.e., 60-40, that a court will strike down the

deadline. “Great,” he responds. “I’m the Attorney General in charge of all litigation against the State of Quincy, so let’s confess judgment and concede that this early signature deadline is unconstitutional.” What do you do and say in response to this?

B.                  While you mull over the request by the Attorney General, you return to your office. Shortly afterwards, the Governor asks you to meet in her ornate office to discuss the case. What do you do in response to that request?

Assuming that you meet with the Governor, Phillips greets you warmly when you arrive: “It’s great to see you once again. You are the best legal writer in the State of Quincy, and don't worry, I haven’t forgotten about your pending application for a judgeship. As you know, the Governor is responsible for executing the laws in the State of Quincy, so that makes me your real client. I just want to make sure that you are going to defend vigorously the State in this challenge to the presumably constitutional Quincy statute setting the signature deadline. You are going to do that, right?” What do you do and say in response to this?

C.                 Once you have extricated yourself from your meeting with Phillips, you return to your office. You have a voicemail from the independent candidate, Rachel Devers, asking you to call her back to discuss the case. What do you do in response to that request?

Assuming that you return the call, Devers reminds you that she is proceeding without an attorney and thus is unfamiliar with court procedure. Devers continues, “I heard Attorney General Haley speak once and he said that his job was to represent the public interest and do justice. Because I can’t afford a lawyer, I assume that means that you will act in the public interest and tell me what is the correct procedure I need to follow and what is the relevant law I need to give to judge to get her to do the right thing.” What do you do and say in response to this?

3.                   You are the Attorney General of the State of Lowell. Lowell is a northern State with some of the highest electricity costs in the country. Butler Energy Company is the largest and most despised utility in the State. Butler Energy somehow managed to receive the lowest consumer ranking in the country. It even ranked behind Pacific Gas & Electric, which is currently in bankruptcy, accused of starting wildfires in California that caused billions of dollars in damages and killed dozens of people.

A.                Last winter, Butler Energy customers saw their electric bills spike, in some cases by as much as 250%. Consumers were outraged and demanded that public officials “do something.” Your Consumer Division sent out an extensive civil investigative demand (CID), and took numerous depositions, to find out what happened. In Lowell, Attorney General investigations, including the CID and deposition process, are confidential by statute. So far, nothing has leaked about the investigation.

Your Chief of Staff, Mickey Barnes, who was your campaign manager in the last campaign, comes to see you. “General, we’ve got to let people know that we are investigating Butler Energy. People are up in arms about these price spikes from last winter, and advocacy groups are asking why their Attorney General isn’t doing something about this. The largest newspaper in the State, The Lowell Times, asked me for a comment on a story that they are going to run about the ‘do nothing’ Attorney General.”

After you point out that consumer investigations are confidential by statute,

Barnes responds: “Look, I’m not a lawyer but I see that AGs in other States often hold press conferences when they issue these so-called ‘confidential’ CIDs. We need to get this story out.”

What do you say and do in response to this?

B.                  Regardless of what you decide to do about announcing the investigation, your Consumer Division has prepared a draft complaint, accusing Butler Energy of engaging in fraudulent and negligent conduct. The draft complaint is given to you for final approval, and pursuant to Lowell law, is sent to Butler Energy, giving them 30- days notice before suit is filed. While the draft complaint is on your desk for approval, you receive a request from the new President of Butler Energy, Emilia Núñez, urgently requesting a meeting to discuss this matter.

What do you do in response to that request?

Assuming that you take the meeting, Núñez makes the following pitch to you: “When I took over this job last spring, I told my folks that we had to get to the bottom of last winter’s price spike and make things right. I learned that mistakes were made, and the responsible people are no longer with the company. I agree that we were sloppy and negligent, but it certainly wasn’t fraud. We are prepared to settle this matter, but if you accuse Butler Energy of fraud, the accusation alone will almost certainly prohibit us from raising money from the bond market next month. If that happens, we’ll have to declare bankruptcy, lay off employees, and discontinue our energy assistance program for low income customers. So, if you proceed against Butler Energy, just charge us with negligent, not fraudulent, conduct.”

What do you say and do in response to this?

C.                 Regardless of what you decide to do, Butler Energy’s problems continue to mount. Within a few months after you make your decision on the draft complaint, consumers filed private class action lawsuits. Then, the Lowell Public Utilities Commission (PUC) denied the proposed 10% rate increase filed by Butler Energy even though Butler Energy told the PUC that the rate increase was critical to its financial solvency. Finally, due to a winter “cyclone” over Thanksgiving that damaged the major port in the State, Butler Energy shut down its natural gas terminal and pipeline, which powered plants that provided 11% of the electricity in Lowell.

Butler Energy has announced that the “only way” it will be able to continue operating as a viable utility, supplying the necessary electricity to Lowell consumers and businesses at a reasonable rate, is to reactivate three coal-fired power plants. Butler Energy shut down these plants several years ago to great fanfare because coal contributes more to climate change than any other electricity source used by Butler Energy.

One of your largest supporters, David Pomeranz, asks to meet with you to discuss Butler Energy’s proposal. Pomeranz is a billionaire who has made climate

change his top priority, spending millions of dollars on the issue. Although he made his initial fortune through software start-ups in Silicon Valley, he is also the founder and owner of the largest solar panel company in Lowell, Sun City. Sun City is a direct competitor of Butler Energy.

What do you do in response to the request for a meeting?

Assuming that you take the meeting, unsurprisingly, Pomeranz strongly encourages you to oppose Butler Energy’s attempts to restart the three coal-fired power

plants. “We’ve been fighting with Butler Energy for years,” Pomeranz explains. “When they say they can’t survive without restarting these dirty coal-fired plants, they’re lying. We have documents that show their finances are a lot better than they claim. We have economists who can explain these documents. We have scientists who can explain why these coal-fired plants are an environmental catastrophe. I am willing to make these available to you and your staff for free. I have always supported you because I believed you were with me on the existential issue of our time. Are you?”

What do you say and do in response to this offer?

4.                   You are an Assistant Attorney General in the State of Adams. You represent a number of professional licensing boards, including the Board of Dentistry.

A.                Like many States, Adams has a shortage of dentists, particularly in rural areas. In an effort to address that shortage, the Adams Legislature passed a bill (and the Governor signed it into law), which created a position of “dental therapist,” who are licensed by the Board of Dentistry. They provide evaluative, preventive, restorative, and minor surgical dental care “under the direction and supervision of a dentist.” There are no dental therapists on the Board of Dentistry, and none of the dentists on the Board of Dentistry employs any dental therapists.

One entrepreneurial dentist in Adams, Jocelyn Kelly, D.D.S., has set up a number of cut-rate dental clinics in small towns in rural parts of the State. The clinics have video monitors and broadband connections that allow Dr. Kelly to oversee in real time the resident dental therapists while they work in each clinic. Unlike most dentists, Dr.

Kelly’s clinics also offer service on nights and weekends, which along with their cheaper rates, make them very popular with poorer, working people.

In a public meeting of the Board of Dentistry, two of the seven board members complained that rural cut-rate dental clinics were driving local dentists out of business. They did not mention Dr. Kelly by name. The Board then voted unanimously to ask the Attorney General for an official opinion whether it would violate the Adams statute requiring dental therapists to operate “under the direction and supervision of a dentist” if the dentist is not physically present in the dental clinic. The resolution did not refer to any specific dentist.

What do you do and say in response to this?

B.                  Regardless of the position taken on the Board’s request for an official Attorney General opinion, Dr. Kelly’s rural cut-rate dental clinics continue to thrive.

Meanwhile, the Board of Dentistry received a number of complaints about the quality of the dental work performed at several of Dr. Kelly’s clinics. Indeed, the Board received more complaints about Dr. Kelly’s clinics than any other dentist office in Adams. One of the complaints was from the Chair of the Board of Dentistry, Henry Ramirez, D.D.S., who said that he had to perform an emergency root canal to correct botched dental procedures performed on several teeth by one of Dr. Kelly’s dental therapists in the cut- rate dental clinic in his town.

In the Board meeting to discuss whether to proceed with a licensing hearing against Dr. Kelly, Dr. Ramirez vociferously argued in favor of proceeding, claiming,