Who’s the Boss? When State Governors and Attorneys General Clash

State governors and attorneys general typically find themselves on the same side of the law.  Nonetheless, an overwhelming majority of states directly elect their attorneys general. This framework creates a natural opportunity for conflicts to erupt, particularly when officials act to protect what they perceive to be equally legitimate interests.

One such drama is playing out in Rhode Island.  On May 18, 2014, a justice of the Rhode Island Superior Court issued a ruling denying Governor Gina Raimondo’s petition seeking the release of grand jury records related to an investigation into the state’s $75 million loan guarantee for the videogame company 38 Studios.  When the company subsequently filed for bankruptcy, Rhode Island taxpayers were left to cover its debt.  Controversy has ensued ever since.

It is a bedrock principle of the grand jury process that investigations are conducted in secret.  When, as here, no indictments issued, the circumstances that allow for the release of documents and testimony are few and far between.  Governor Raimondo—along with other Rhode Island political leaders—nevertheless asked the court to order the release of the 38 Studios materials based on the “profound and sustained public interest in [the deal’s] underlying circumstances and consequences.”

This request was not unprecedented.  Grand jury materials had been released in several high profile investigations of “extraordinary public interest,” including the Rhode Island Attorney General’s probe of the 2003 Station Nightclub fire, in which 100 people died after pyrotechnics ignited sound insulation in a Warwick, RI nightclub.

Despite mounting public pressure, Attorney General Peter Kilmartin has steadfastly resisted calls for the release of the records, arguing “the public’s right to full disclosure and the public’s interest in transparency does not outweigh witnesses’ right to secrecy.”  The Attorney General’s Office succeeded in persuading a Superior Court judge that this position is the correct one.  The Court held that the Governor’s petition did not satisfy any of the exceptions governing the release of grand jury materials provided by Rhode Island law.  The Court further found that the Governor did not carry her burden of showing that the need for transparency outweighed the need for secrecy, further cautioning that if “public clamor alone” justified disclosure, it would “cause the exception to swallow the rule.”

The Governor has not stated whether she will appeal the decision.  The Rhode Island General Assembly is in any event poised to consider legislation that would deem any record created by the State Police or Attorney General’s Office related to the investigation a public record.  Release of any grand jury materials, however, would still require court approval.

The dispute between Governor Raimondo and Attorney General Kilmartin is far from unique.   For a discussion of the dispute between Colorado’s Governor John Hickenlooper and Attorney General Cynthia Coffman over EPA’s Clean Power Plan, see Foley Hoag’s blog on Law & the Environment.  In Maine, the state’s governor is suing its attorney general for refusing to represent him in federal lawsuits.  In Louisiana, the state attorney general has sued the governor over a four-million-dollar funding dispute.  As political tensions rise, one might reasonably expect such disputes to increase, whether motivated by deeply held principles or simple politics.

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