Secretary of Administration and Finance v. Attorney General

• Decision Date: 20 March 1975
• Citation: 326 N.E.2d 334,367 Mass. 154
• Parties: SECRETARY OF ADMINISTRATION AND FINANCE v. ATTORNEY GENERAL et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 334

326 N.E.2d 334

367 Mass. 154

SECRETARY OF ADMINISTRATION AND FINANCE v. ATTORNEY GENERAL et al. ¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 5, 1974.

Decided March 20, 1975.

William G. Young, Boston, Chief Legal Counsel to the Governor (Henry Clay, Boxford, Alexander H. Pratt, Jr., and Robert F. Oberkoetter, Boston, with him) for plaintiff.

Kenneth H. Zimble, Boston (Joel Z. Eigerman, Boston, with him) for the Trustees of the Stigmatine Fathers, Inc.

Robert H. Quinn, Atty. Gen., pro se.

Before TAURO, C.J., and REARDON, BRAUCHER, KAPLAN and WILKINS, JJ.

TAURO, Chief Justice.

The plaintiff commenced this action against the Attorney General before a single justice of this court seeking a declaration that, when the Attorney General is representing the Secretary of Administration and Finance and Commissioner of Administration (Secretary) in a civil action, he is required, at the Governor's request, either to pursue an appeal or to appoint a special assistant attorney general, to be paid by the Secretary, to do so. The Secretary, joining The Trustees of the Stigmatine Fathers, Inc. (Trustees) as a party defendant pursuant to G.L. c. 231A, § 8 also sought an order extending the time for filing a notice of appeal, pursuant to Rule 65(a), of the Massachusetts Rules of Civil Procedure, --- Mass. --- (1974), and Rule 14(b) of the Massachusetts Rules of Appellate Procedure, --- Mass. --- (1974), in the related action described below. After a hearing, the single justice ordered that the time for filing a notice of appeal in the related action be extended until further order of the court, and, on request of the parties, reported the matter to this court for determination.

The related action was brought in the Superior Court by the Trustees against the Secretary after he refused to take the steps necessary to complete the sale of property owned by the Trustees to the Board of Trustees of State Colleges (Board). In a prior Superior Court action brought by the Trustees against the Board to determine the validity of the purchase and sale agreement, a consent decree had been entered to the effect that all conditions of the agreement had been met and that the agreement was valid and binding on all parties. The Attorney General had represented the Board in that action.

In the related action against the Secretary, the Trustees argued that the prior decree estopped the Secretary from claiming that the purchase and sale agreement was invalid. The Secretary claimed that he was not bound by the prior decree because he was not a party to that action. He then argued that the purchase and sale agreement was not valid because conditions regarding appropriations had not been fulfilled. Finally, he argued that he had the power to refuse to allot the money for the purchase if, in his discretion, it was not in the best interests of the Commonwealth to do so. The case was tried on a statement of agreed facts, and the Attorney General represented the Secretary.

Although the collateral estoppel effect of a judgment against the State agency on another was a question of first impression in this Commonwealth, the Superior Court judge, in a well reasoned opinion, ruled that the Secretary was estopped from raising the invalidity of the agreement. Although we need not decide this issue, we note that, in making his decision, the judge considered the law in other jurisdictions, including a Supreme Court decision involving Federal agencies, as well as the Restatement of Judgments, general principles of res judicata and collateral estoppel, and the underlying policy arguments. After considering legislative history and constitutional questions, the judge also ruled that the Secretary did not have discretion to refuse to allot the money that had been appropriated for the purchase. He rendered a declaratory judgment to this effect, but denial injunctive relief, relying on the assumption that a public officer will carry out his duty under the law.

Although the Attorney General represented the Secretary throughout the proceedings in the Superior Court, he decided not to appeal the judge's adverse decision. ² Shortly thereafter, the Secretary conveyed the Governor's request to him that he obtain appellate review of the order entered in the related action on all issues except that relating to the allotment power. The Secretary orally discussed this request with the Attorney General on two subsequent occasions and repeated it later by letter.

On the last day for filing the appeal, the Governor's legal counsel telephoned the Attorney General's office and spoke to the first assistance. He repeated the Governor's request that the Attorney General either represent the Secretary on appeal or appoint, at the Secretary's expense, a special assistant for this purpose. Later that same day by written communication to the Secretary, the Attorney General declined to prosecute the appeal. The Secretary then instituted the present action.

1. Before reaching the merits, we dispose of the preliminary question whether the Secretary can properly appear before us represented by counsel other than the Attorney General or his designee. Although a technical reading of G.L. c. 12, § 3, and its legislative history indicate that only the Attorney General is authorized to appear for State agencies and officers, adherence to this rule in the instant case would effectively prevent review by this court where the powers of the Attorney General are themselves in question. The Supreme Court of Pennsylvania, in a case where the Attorney General challenged the propriety of private counsel's representing a government official, said: 'It would be little short of farcical to decide that the Attorney General should represent defendants on so much of their appeal as challenges the accuracy of this ruling . . . (to strike the names of private counsel from the record). They (the officials) were entitled to have the decision of the court below on that point reviewed by us, without interference from any source, and to be represented by their own counsel in obtaining it.' Piccirilli Bros. v. Lewis, 282 Pa. 328, 337, 127 A. 832, 835 (1925). This reasoning is equally applicable in the instant case. Accordingly, we hold that the Governor's legal counsel properly represented the Secretary. We emphasize, however, that this narrow exception applies only where the powers of the Attorney General's office themselves are in question, and not in the ordinary case of disagreement between an agency and the Attorney General. ³

2. Having disposed of the preliminary issue, we now turn to the merits of the case. The Secretary contends that the traditional attorney-client relationship exists between himself and the Attorney General, and thus it is up to him, as client, and not for the Attorney General, as attorney, to decide whether to prosecute an appeal. See Canons of Ethics and Disciplinary Rules Regulating the Practice of Law, DR 7--101(A)(1), 359 Mass. 796, 818 (1972). See also American Bar Association Code of Professional Responsibility and Canons of Judicial Ethics (EC) 7--7 (1970). We cannot accept this contention. Although we agree that the canons permit the client to make such decisions where the traditional attorney-client relationship exists, a careful reading of G.L. c. 12, § 3, its legislative history and the history of the office of Attorney General compel us to conclude that something other than that traditional attorney-client relationship exists where the Attorney General 'appears for' an officer, department head or secretary pursuant to c. 12. We hold that the Attorney General, as 'chief law officer of the commonwealth,' Commonwealth v. Kozlowsky, 238 Mass. 379, 389, 131 N.E. 207, 212 (1921), has control over the conduct of litigation involving the Commonwealth, and this includes the power to make a policy determination not to prosecute the Secretary's appeal in this case. We further hold that, on the record before no extraordinary circumstances exist which would vitiate the power in this case. ⁴

The office of Attorney General has a long history, dating back as far as the early Fifteenth Century in England. 6 Holdsworth, History of English Law, 460 (1924), cited in Richardson, The Office of the Attorney General: Continuity and Change, 53 Mass.L.Q. 5, 6 (1968). Although the position was still somewhat limited in scope throughout the Sixteenth Century, by early in the Seventeenth Century its development was practically complete. Id. at 470. 'By the end of the seventeenth century the office, held by such eminent lawyers as Coke and Bacon, had achieved the importance and breadth of authority we associate with it today.' Richardson, loc. cit. Accord, Commonwealth v. Kozlowsky, 238 Mass. at 385, 131 N.E. 207 (1921).

The office was first established in Massachusetts in 1680. Richardson, loc. cit. it became endowed with the powers and duties it became endowed with the powers and duties appertaining to it at common law . . .. It became one of the institutions of the common law brought by the early settlers to these shores, and its functions constituted a part of . . . our jurisprudence.' Id. at 386, 131 N.E. at 210. At that time, the powers and duties of the office rested largely on the common law and on needs as they arose in the practical administration of the office. There was little statutory regulation or modification of the office until adoption of the Constitution in 1780. Ibid.

Although the office is mentioned in many statutes in the early Nineteenth Century, it was not until 1832 that it was defined in a meaningful way. Statute 1832, c. 130, § 8, provided that the Governor should appoint a suitable person as Attorney General 'with all the powers and privileges, and subject to all the duties by law belonging to said office.' It further provided that the Attorney General should represent all causes in the Supreme Judicial Court in which the...