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HOUSE BILL NO. 293
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H0293......................................................by STATE AFFAIRS
ATTORNEY GENERAL - DUTIES - Amends and repeals existing law to provide that
a department, agency, office, officers, board, commission, institution or
other state entity may be represented by or obtain its legal advice from an
attorney at law other than the Attorney General.
03/03 House intro - 1st rdg - to printing
03/04 Rpt prt - to St Aff
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature First Regular Session - 2005
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 293
BY STATE AFFAIRS COMMITTEE
1 AN ACT
2 RELATING TO THE OFFICE OF THE ATTORNEY GENERAL; AMENDING SECTION 67-1401,
3 IDAHO CODE, TO REVISE DUTIES OF THE ATTORNEY GENERAL AND TO MAKE TECHNICAL
4 CORRECTIONS; AMENDING SECTION 67-1406, IDAHO CODE, TO PROVIDE THAT A
5 DEPARTMENT, AGENCY, OFFICE, OFFICERS, BOARD, COMMISSION, INSTITUTION OR
6 OTHER STATE ENTITY MAY BE REPRESENTED BY OR OBTAIN ITS LEGAL ADVICE FROM
7 AN ATTORNEY AT LAW OTHER THAN THE ATTORNEY GENERAL; AMENDING SECTION
8 67-1408, IDAHO CODE, TO PROVIDE FOR BILLING TO AGENCIES WHEN THE ATTORNEY
9 GENERAL HAS BEEN REQUESTED TO PROVIDE LEGAL SERVICES TO THE STATE AGENCIES
10 AND TO DELETE LANGUAGE STATING THAT THE ATTORNEY GENERAL SHALL MANAGE THE
11 ATTORNEY GENERAL'S OFFICE TO PROVIDE UNIFIED LEGAL SERVICES BASED UPON THE
12 LEGAL NEEDS OF THE STATE; AND REPEALING SECTION 67-1409, IDAHO CODE.
13 Be It Enacted by the Legislature of the State of Idaho:
14 SECTION 1. That Section 67-1401, Idaho Code, be, and the same is hereby
15 amended to read as follows:
16 67-1401. DUTIES OF ATTORNEY GENERAL. Except as otherwise provided in this
17 chapter, iIt is the duty of the attorney general:
18 1. To perform all legal services for the state and to represent the state
19 and all departments, agencies, offices, officers, boards, commissions, insti-
20 tutions and other state entities, in all courts and before all administrative
21 tribunals or bodies of any nature. Representation shall be provided to those
22 entities exempted pursuant to the provisions of section 67-1406, Idaho Code To
23 attend the supreme court and prosecute or defend all causes to which the state
24 or any officer thereof, in his official capacity, is a party, and all causes
25 to which any county may be a party, if the county requests; and also to prose-
26 cute and defend all the abovementioned causes in the United States courts.
27 Whenever required to attend upon any court or administrative tribunal the
28 attorney general shall be allowed necessary and actual expenses, all claims
29 for which shall be audited by the state board of examiners.
30 2. To advise all departments, agencies, offices, officers, boards, com-
31 missions, institutions and other state entities in all matters involving ques-
32 tions of law, if requested.
33 3. After judgment in any of the causes referred to in the first subdivi-
34 sion subsection 1. of this section, to direct the issuing of such process as
35 may be necessary to carry the same into execution.
36 4. To account for and pay over to the proper officer all moneys received
37 which belong to the state.
38 5. To supervise nonprofit corporations, corporations, charitable or
39 benevolent societies, person or persons holding property subject to any public
40 or charitable trust and to enforce whenever necessary any noncompliance or
41 departure from the general purpose of such trust and, in order to accomplish
42 such purpose, said nonprofit corporations, corporations, charitable or benevo-
43 lent societies, person or persons holding property subject to any public or
1 charitable trust are subject at all times to examination by the attorney gen-
2 eral, on behalf of the state, to ascertain the condition of its affairs and to
3 what extent, if at all, said trustee or trustees may have failed to comply
4 with trusts said trustee or trustees have assumed or may have departed from
5 the general purpose for which it was formed. In case of any such failure or
6 departure, the attorney general shall institute, in the name of the state, any
7 proceeding necessary to enforce compliance with the terms of the trust or any
8 departure therefrom.
9 6. To give an opinion in writing, without fee, to the legislature or
10 either house thereof, or any senator or representative, and to the governor,
11 secretary of state, treasurer, state controller, and the superintendent of
12 public instruction, when requested, upon any question of law relating to their
13 respective offices. The attorney general shall keep a record of all written
14 opinions rendered by the office and such opinions shall be compiled annually
15 and made available for public inspection. All costs incurred in the prepara-
16 tion of said opinions shall be borne by the office of the attorney general. A
17 copy of the opinions shall be furnished to the supreme court and to the state
19 7. When required by the public service, to repair to any county in the
20 state and assist the prosecuting attorney thereof in the discharge of duties.
21 8. To bid upon and purchase, when necessary, in the name of the state,
22 and under the direction of the state controller, any property offered for sale
23 under execution issued upon judgments in favor of or for the use of the state,
24 and to enter satisfaction in whole or in part of such judgments as the consid-
25 eration for such purchases.
26 9. Whenever the property of a judgment debtor in any judgment mentioned
27 in the preceding subdivision subsection has been sold under a prior judgment,
28 or is subject to any judgment, lien, or encumbrance, taking precedence of the
29 judgment in favor of the state, under the direction of the state controller,
30 to redeem such property from such prior judgment, lien, or encumbrance; and
31 all sums of money necessary for such redemption must, upon the order of the
32 board of examiners, be paid out of any money appropriated for such purposes.
33 10. When necessary for the collection or enforcement of any judgment here-
34 inbefore mentioned, to institute and prosecute, in behalf of the state, such
35 suits or other proceedings as may be necessary to set aside and annul all con-
36 veyances fraudulently made by such judgment debtors; the cost necessary to the
37 prosecution must, when allowed by the board of examiners, be paid out of any
38 appropriations for the prosecution of delinquents.
39 11. To exercise all the common law power and authority usually appertain-
40 ing to the office and to discharge the other duties prescribed by law.
41 12. To report to the governor, at the time required by this code, the con-
42 dition of the affairs of the attorney general's office and of the reports
43 received from prosecuting attorneys.
44 13. To appoint deputy attorneys general and special deputy attorneys gen-
45 eral and other necessary staff to assist in the performance of the duties of
46 the office. Such deputies and staff shall be nonclassified employees within
47 the meaning of section 67-5302, Idaho Code.
48 SECTION 2. That Section 67-1406, Idaho Code, be, and the same is hereby
49 amended to read as follows:
50 67-1406. EMPLOYMENT OF ATTORNEYS. RESTRICTED -- EXEMPTIONS. Notwithstand-
51 ing any other provision of law to the contrary, no A department, agency,
52 office, officers, board, commission, institution or other state entity shall
53 may be represented by or obtain its legal advice from an attorney at law other
1 than the attorney general. except as follows:
2 (1) The legislative and judicial branches of government and the governor
3 may employ attorneys other than those under the supervision of the attorney
4 general, and such attorneys may appear in any court. However, such entities
5 may, upon request, utilize the attorney general's legal services.
6 (2) Those state entities within the department of self-governing agencies
7 which are enumerated in sections 67-2601(2)(a), 67-2601(2)(b) and 67-2601(3),
8 Idaho Code, and colleges and universities may employ private counsel to advise
9 them and represent them before courts of the state of Idaho. Such entities may
10 also obtain legal services from the attorney general on such terms as the par-
11 ties may agree.
12 (3) Whenever the attorney general determines that it is necessary or
13 appropriate in the public interest, the attorney general may authorize con-
14 tracts for legal services pursuant to the provisions of section 67-1409, Idaho
16 (4) The provisions of section 67-1401, Idaho Code, shall govern the nor-
17 mal relationship between the attorney general and the state entities in the
18 executive branch of state government. However, if after consultation with the
19 attorney general, the governor determines in his sole judgment, which shall
20 not be subject to judicial review, that counsel assigned to represent or give
21 legal advice to any state entity, other than the lieutenant governor, state
22 controller, state treasurer, secretary of state, attorney general, and the
23 superintendent of public instruction, cannot effectively advocate or pursue
24 the policies of the governor, the governor shall request that other counsel be
25 provided by the attorney general, and the attorney general shall provide from
26 within the office of the attorney general or obtain from outside the office of
27 the attorney general, depending upon the request of the governor, qualified
28 counsel acceptable to the governor to represent such state entity.
29 (5) Any separate counsel employed pursuant to the foregoing exceptions
30 shall be compensated with funds appropriated to such state entity, unless such
31 separate counsel shall have been employed at the request or convenience of the
32 attorney general or because of a conflict in representation by the attorney
34 SECTION 3. That Section 67-1408, Idaho Code, be, and the same is hereby
35 amended to read as follows:
36 67-1408. BILLING OF STATE ENTITIES FOR LEGAL SERVICES. The attorney gen-
37 eral, in rendering assistance to the departments, agencies, offices, officers,
38 boards, commissions, institutions and other state entities, when requested,
39 shall charge for all costs of such assistance as determined pursuant to sec-
40 tion 67-1407, Idaho Code, including, but not limited to, salaries of attor-
41 neys, paralegals, administrative, clerical and other personnel, investigative
42 services, independent contractors, operating expenses and capital outlay
43 expenses of the office of the attorney general. Whenever the attorney general
44 determines that it would be beneficial to physically locate attorneys within
45 an agency, when the attorney general has been requested by the agency to pro-
46 vide legal services, the attorney general and agency may enter into an agree-
47 ment defining which operating, capital or other expenses will be paid by the
48 attorney general and which expenses will be paid by the agency.
49 The attorney general shall manage the attorney general's office to provide
50 unified legal services based upon the legal needs of the state. For this pur-
51 pose the attorney general may, during any fiscal year, assign personnel based
52 upon the legal needs existing regardless of the source of funding therefor.
1 SECTION 4. That Section 67-1409, Idaho Code, be, and the same is hereby
STATEMENT OF PURPOSE
This change in the law would allow a department, agency, office,
officers, board, commission, institution or other state entity to
obtain its legal advice from an attorney at law other than the
It could be a positive or negative impact to the state entity.
The state entity would be able to choose and budget accordingly
as they do today.
Name: Rep. Ann Rydalch
STATEMENT OF PURPOSE/FISCAL NOTE H 293