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August 15, 2005
Minnesota's attorney general has gotten a lot of criticism that he's overstepped the bounds of his office in regulating non-profits. While critics may say he has not used his powers fairly, the bottom line is the attorney general does possess an immense amount of power. The office of attorney general has influential roots that date back to at least 1500s.
St. Paul, Minn. — Centuries ago in England, the Court of Chancery heard disputes over whether charities were using their donations for the donors' intended purposes. University of Minnesota Law Professor Fred Morrison says the King's chief lawyer and representative, the attorney general, would present those cases to the court.
"It might be a university saying, 'we're entitled to the gold from a certain gift and the person who has it isn't giving it to us,'" says Morrison.
Morrison says over time, the attorney general began bringing cases on behalf of the public good. Later at the time of the colonies and early statehood, the attorney general's role began to take hold as a separate entity. In Minnesota, he says, the office took on more prominence in comparison to about half of the other states because Minnesota decided the governor would not appoint the attorney general; the public would separately elect him or her to an independent office.
"The treasurer was elected separately, the auditor was elected separately, and the attorney general was elected separately and so on. So the attorney general became a significant state officer," he says.
One of the ways attorneys general exercise their power is not widely known. They have the power to issue binding legal opinions on state agencies unless a court disagrees. They have a power at least in one area to interpret the law.
But the major expansion of attorneys general power came in the 1970s and '80s when a consumer-protection movement swept across the country. While some states chose their commerce departments or special consumer protection commissioners to oversee such cases, Minnesota gave that power to the attorney general.
Attorney Tom Pursell, who worked in attorney general's office from 1980 to 1998, says at the time, the federal government backed off from consumer protection and state attorneys general jumped in to fill the void.
"That is a trend that really started in the 1980s with the Reagan administration anti-trust division and you can really chart the rise of the attorneys general as anti-trust enforcers against the decline in activism from Washington," says Pursell.
During this same time, the state Legislature passed a law requiring that HMOs in Minnesota be non-profit. Pursell says the rising costs of health care began bubbling as an important public policy issue. As a result, the non-profit status and an important public policy issue made HMOs ripe for attorney general oversight. In other states, for-profit HMO's were largely accountable only to their stockholders or private lawsuits.
Pursell says, however, that it wasn't necessarily that Minnesota's attorney general's powers had expanded to cover health care, but health care was changing in ways that raised consumer protection issues.
"It meant that not only were the external operations of HMOs subject to the generally applicable consumer protection and anti-trust laws that are kind of the main arrows in the attorney general's quiver, but also that the internal financial regulation to some extent could be controlled by the charitable trust laws." he says.
More recently, attorneys general have expanded their power by sharing information with each other. U.S. District Judge Jack Tunheim has written about the powers of attorneys general and served as chief deputy attorney general for nearly 10 years. He says attorneys general around the nation began to learn from each other's lawsuits.
"For example, an action taken by an attorney general in Florida which is approved by the courts, an attorney general in Minnesota and Wisconsin might see that and say, 'well that's a problem here too and we can try that as well," says Tunheim.
Regardless of how attorneys general use their power, they are often targets of criticism. But Tunheim says there are two checks on the attorney general if the public believes he or she's overstepped the bounds of the office -- the judiciary and the legislature.
"The courts are available to assess what the attorney general is doing and determine whether it is appropriate under the law and the legislature as well. If the attorney general is acting in a way that a broad segment of the public disagrees, legislators are going to react and pass laws which restrict the attorney general's power," he says.
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