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Bar News - June 21, 2017


Opinion: ‘Fatal Flaws’ of DCYF Raise Concerns Over AG’s ‘Duty to Defend’

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The dysfunction within the NH Division of Children, Youth and Families (DCYF) resulting in that agency’s failure to protect children from child abuse creates a compelling prism through which to assess the Attorney General’s so-called “duty to defend” the state.

Rigid adherence to the duty to defend, especially in the context of such serious policy concerns, might not always align with the broader principles an Attorney General is bound to consider and sworn to uphold.

Based on reporting by Allie Morris in the Concord Monitor series, “Fatal Flaws,” it is not hard to imagine that the state could be sued for failing to abide by various state and federal constitutional obligations to protect children from child abuse, including deadly abuse.

DCYF commissioned an independent report published in December 2016 highlighting structural issues that prevent the agency from prioritizing children who are facing serious risk of harm. It is far from certain that current budgeting will correct the shortcomings the report identified.

Should these failures trigger a lawsuit that names an abusive parent and DCYF as defendants, a situation could arise in which the parent, a representative of the agency, and a member of the Attorney General’s staff must engage in the finger-pointing of litigation over who is the more responsible party for the death of a child. Defending the state in such a context could foreseeably create conflicts for the Attorney General.

Given the laws and standards that govern the work of the Attorney General, would such a scenario be the only option for the state’s top law enforcement agency, should a lawsuit be filed in connection with the deaths of children in DCYF’s care?

The Attorney General must defend the state and its laws unless the laws or the state’s conduct is “patently illegal or unconstitutional,” wrote then-NH Attorney General David Souter, in a letter dated March 30, 1978.

More recently, Charles Arlinghaus, now the commissioner of the NH Department of Administrative Services, criticized former Attorney General Joseph Foster for “failing to defend” the state against an education funding lawsuit, in a November 2015 Union Leader commentary. In his words, the failure was the “equivalent of a veto of legislation without any ability to override that veto.”

Former New Hampshire Supreme Court Justice Charles Douglas, writing in the Concord Monitor in February, on the other hand, criticized Foster for too stridently defending the state in the so-called “ballot selfie law” case, which he called “a clear loser.”

If the duty to defend is not absolute, as Douglas appears to contend, will New Hampshire citizens nevertheless demand that our Attorney General vigorously defend DCYF, raising every conceivable good faith defense, denying every allegation, and fighting the case all the way to the US Supreme Court? Or, does principle permit an approach that would allow the Attorney General’s Office more flexibility to pursue a just result, where child safety is the foremost consideration?

The approaches of Arlinghaus and Douglas to the duty to defend both have historical antecedents, with Douglas’s view representing an interpretation that would appear to give the Attorney General wider discretion.

Indeed, prosecutors often invoke discretionary authority to settle cases for lesser charges or penalties, drop cases for policy reasons, or direct agencies to focus their scope on other matters. The federal approach to the prosecution of marijuana crimes, for instance, is the result of a series of memoranda instructing prosecutors not to enforce federal law to the full extent, triggering the type of “veto” Arlinghaus identified.

On the other hand, Kansas Attorney General Harold Fatzer declared the “separate but unequal” doctrine to be “morally, politically and economically indefensible,” yet, duty-bound, he defended segregated schools against Thurgood Marshall in Brown v. Board of Education.

The approaches of Fatzer, Souter and Arlinghaus protect state law enforcement lawyers from charges that they are unilaterally reversing legislative judgments, even while asking that these attorneys prefer statutes and state action to the timeless and more fundamental provisions of the constitution, though their oaths require no such obligation.

We will all wait and watch as our new Attorney General navigates this and other very serious situations, and so contributes to the ongoing debate surrounding the office’s “duty to defend.” Whether he aggressively defends a bureaucracy and state policy that has failed to protect children, or whether he aligns his mission with the public safety interests of children will turn on his interpretation of his obligations.


Michael S. Lewis

Mike Lewis is a shareholder at Rath, Young and Pignatelli and a litigator. He is a former Assistant Attorney General.

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