ATTORNEY GENERAL V MPSCAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
ATTORNEY GENERAL JENNIFER M.
December 8, 2000
MICHIGAN PUBLIC SERVICE COMMISSION
and DETROIT EDISON COMPANY,
LC Nos. 00-011449; 00-011528
February 2, 2001
Before: Meter, P.J., and Griffin and Talbot, JJ.
METER, P.J. (dissenting).
I respectfully dissent because I do not believe that this case presents the appropriate
circumstances in which to address the Attorney General's ability to sue a party whom she also
The majority's opinion fails to adequately address a key issue directed to us by the
October 11, 2000, order of the Supreme Court: "whether the conflict of interest question raised
at the oral argument presents a live controversy in this case or the dispute is purely
hypothetical."1 I conclude that the conflict of interest question raised at oral argument is indeed
purely hypothetical in this case and that its merits should therefore be addressed in the context of
a future, more appropriate case.
There is no conflict of interest per se in the Attorney General representing a state agency
and appearing as a litigant on the opposing side. See, e.g., Attorney General v Public Service
Comm, 412 Mich 385; 316 NW2d 187 (1982) (in which the Attorney General sued a party whom
he also represented), and State ex rel Allain v Mississippi Public Service Comm, 418 So 2d 779
(Miss, 1982) (in which the attorney general appeared as an intervening party opposite an agency
that he also represented). In Allain, the court discussed the possibility of a conflict of interest and
stated that no inherent conflict existed:
The prevailing rule is that where the attorney general has common law
powers, he has the inherent right to intervene in all suits affecting the public
interest when he had no personal interest therein.
* * *
Considering our scheme of laws with respect to the attorney general being
the chief legal officer of the State with the duty to represent the many agencies of
the State and his duty to protect the public interest, we are of the opinion and hold
that the majority rule will afford maximum protection to the public interest as well
as afford complete legal representation to the various state agencies.
The attorney general has a large staff which can be assigned in such a
manner as to afford independent legal counsel and representation to the various
agencies. The unique position of the attorney general requires that when his views
differ from or he finds himself at odds with an agency, then he must allow the
assigned counsel or specially appointed counsel to represent the agency unfettered
and uninfluenced by the attorney general's personal opinion. If the public interest
is involved, he may intervene to protect it. [Id. at 783-784.]
See also Weaver v Blue Cross & Blue Shield of Alabama, 570 So 2d 675, 681-682 (Ala, 1990)
(indicating that the attorney general could appear as counsel for opposing sides of a dispute).
These cases indicate that no conflict of interest per se existed in this case. Indeed, the
office of the Attorney General has historically assigned its large staff to separate divisions for
representation of state agencies in such a manner as to essentially afford those agencies
independent legal counsel. Moreover, although an actual conflict of interest (as opposed to a
conflict per se) could potentially arise in a given case, the Public Service Commission (PSC) in
this case neither demonstrated nor suggested such an actual conflict. The PSC did not even
question the Attorney General's representation of it until after this Court raised the conflict of
interest issue during oral argument. Subsequently, the PSC failed to allege or show how the
Attorney General's dual representation on the underlying issue compromised the PSC.
Accordingly, the conflict of interest issue in this case is purely hypothetical and should not be
addressed by this Court. See, e.g., Kent Prosecuting Attorney v Kent Circuit Judges, 110 Mich
App 404; 313 NW2d 135 (1981).
Even if this case were analogized to a declaratory judgment action in which the PSC
asked for a ruling regarding the Attorney General's ability to sue a party whom she also
represents, there would still exist no live controversy.
Indeed, for such an action to be
justiciable, the PSC would have to provide particularized facts showing how the Attorney
General's dual representation on the underlying issue compromised the PSC or how adverse
interests between the Attorney General and the PSC necessitated a sharper rule regarding the
Attorney General's ability to represent two sides of a dispute. The PSC did not provide such
facts. Accordingly, there exists no live controversy regarding the Attorney General's actions in
this case. See Shavers v Kelley, 402 Mich 554, 589; 267 NW2d 72 (1978) (indicating, in the
context of a declaratory judgment action, that a party seeking declaratory relief must "plead
facts entitling him to the judgment he seeks and prove each fact alleged, i.e., a plaintiff must
allege and prove an actual justiciable controversy) (emphasis in original). See also Michigan
State AFL-CIO v Civil Service Comm, 191 Mich App 535, 545; 478 NW2d 722 (1991).
This Court simply does not address hypothetical issues in which no live controversy
exists. See Shavers, supra at 589, and Blue Cross & Blue Shield of Michigan v Governor, 422
Mich 1, 72; 367 NW2d 1 (1985). Moreover, the Court of Appeals cannot exercise original
jurisdiction to grant a declaratory judgment. See Musselman v Governor, 200 Mich App 656,
667-668; 505 NW2d 288 (1993). Accordingly, I would not use this instant case to address the
issue of the Attorney General's dual representation but would wait instead to address it in the
context of an actual controversy.2
/s/ Patrick M. Meter
While the majority opinion addresses the question of mootness, it fails to address whether a
live controversy existed in this case. Contrary to the majority's implication, whether a particular
case is moot and whether it involves a live controversy are two separate questions. Indeed, there
can be cases involving live controversies that are subsequently rendered moot because the
requested relief has already been granted. Conversely, if no live controversy exists in the first
place, like in the instant case, then one does not even reach the question of whether the issue has
The PSC contends that an actual controversy does exist here because the Attorney General
initially refused, against the PSC's wishes, to allow the PSC to retain independent counsel to
brief the conflict of interest issue raised during oral argument (the Attorney General subsequently
reconsidered and authorized the PSC to retain outside counsel). However, the fact remains that
no actual controversy was proved with regard to the Attorney General's representation in the
underlying case. Accordingly, because no actual controversy existed regarding the Attorney
General’s potential conflict of interest in the underlying case, I do not believe that the conflict of
interest issue is properly before this Court or that it should be addressed by this Court.