Plain English in the Department of Attorney General
As the state's largest public law firm, the Michigan Department of Attorney General provides its governmental clients a full range of legal services. Assistant attorneys general serve as prosecutors in criminal cases, as trial counsel in complex civil litigation, as appellate advocates in state and federal appellate tribunals, and as general counsel to the state's departments and agencies. Each of these responsibilities requires clear and concise legal writing. Plain English is especially important to the Department of Attorney General because so much of its work involves the public interest. The Department's legal writing is read as often by interested lay persons as it is by judges and lawyers.
Attorney General Jennifer M. Granholm is committed to quality legal writing. In November 1999, Ms. Granholm underscored her commitment by sponsoring an all-day, advanced legal writing seminar patterned after programs presented to state and federal judges for assistant attorneys general. This renewed emphasis on quality writing is supported by well-established departmental procedures intended to assure that legal papers prepared by assistant attorneys general are well-written and worthy of the important issues they address. This article offers an overview of these procedures, focusing on plain English in the opinion process, in civil and criminal litigation, and in appellate writing.
PLAIN ENGLISH IN THE OPINION PROCESS
The extensive opinion-writing process, by its nature, promotes plain English. By statute,1 the Attorney General is required to give her opinion on questions of law submitted by the Legislature, Governor, Auditor General, Treasurer, or any other state officer.2 Michigan's Supreme Court has recognized that one of the "primary missions" of the Attorney General is to give legal advice to members of the Legislature and to departments and agencies of state government. Opinions of the Attorney General are binding on state agencies and state officers.3 While not precedentially binding on the judiciary, opinions of the Attorney General constitute "persuasive authority" on legal issues.4
Upon receipt, all opinion requests are referred to the Assistant Attorney General for Law, Theodore E. Hughes. Opinion requests are initially evaluated to determine whether to grant the request. Typical reasons for declining a request are that the requester lacks standing (e.g., is not a person named in the statute cited at n 1), or that the question:
• seeks an interpretation of proposed legislation that may never become law
• is currently pending before a tribunal
• involves the operation of the judicial branch of government or a local unit of government
• seeks legal advice for or involves disputes between private persons or entities
If the request is granted, it is then determined whether the response should be classified as a formal opinion, letter opinion, or informational letter. Formal opinions address questions significant to the state's jurisprudence that warrant publication. Letter opinions involve questions that should be addressed by the Attorney General, but that are of limited impact and do not warrant publication. Informational letters address questions that have relatively clear, well-established answers. Copies of all pending requests are provided to the Governor's Legal Counsel, thereby affording the opportunity for input.
If an opinion request is granted, it is assigned to an assistant attorney general having a recognized expertise in the relevant area of the law. This attorney is expected to prepare a thoroughly researched and well-written draft. Mr. Hughes edits the draft to assure it is both legally sound and well-written. The draft may be circulated to other Department lawyers for substantive review.
All informational letters, and most letter opinions, are submitted directly to the Deputy Attorney General, William J. Richards, for review and approval. If the draft does not require further editing, it is submitted to Attorney General Granholm or, in the case of informational letters, the draft is signed and issued by Deputy Attorney General Richards. Drafts of all formal opinions and some letter opinions are first submitted for consideration and approval by the Attorney General's Opinion Review Board (ORB).
The ORB, which meets weekly to review draft opinions, consists of seven senior attorneys general. The ORB assures that draft opinions are both legally accurate and well-written. In considering a draft, the ORB has several options, including receiving input from the drafter as well as from persons outside the Department, revising the draft, directing that revisions be made by others, and requesting that a counter draft be submitted by either the original drafter or by another person.
Upon final ORB approval, draft opinions are submitted to Deputy Attorney General Richards for review and, if approved, to Attorney General Granholm for her approval and signature. As part of their review, the Deputy Attorney General and the Attorney General approve the draft opinion as is, make editing changes or, in rare instances, make significant revisions.
Upon issuance, formal opinions are published and indexed in the Biennial Report of the Attorney General. Formal opinions issued since January 1, 1997, are available on the Attorney General's website: www.ag.state.mi.us Formal opinions issues since 1977 can be found on both Westlaw and Lexis. Formal and letter opinions are available on request from the Department's opinions librarian. The Department is currently in the process of placing on its website all formal and letter opinions issued since 1962.
PLAIN ENGLISH IN LITIGATION PAPERS
Under Michigan law, the office of Attorney General is recognized as having plenary authority to prosecute and defend all actions in which the state may have an interest and to "intervene in and appear for the people of the state...in any...court or tribunal, in any cause or matter, civil or criminal, in which the people of the state may be a party or interested."5 This sweeping authority includes the right to intervene "at any stage of the proceeding."6
Besides the broad grant of authority to intervene in any litigation of interest to the people of the state in any court, the Attorney General has a multitude of specific statutory duties outside the scope of this article. These duties include not only the obvious, such as the representation of state officers7 and state agencies,8 but the esoteric, such as a civil action to recover illegally expended public moneys9 or to seek an accounting of the assets of any charitable trust.10 The comprehensive authority of the Attorney General makes writing in plain English a lofty but necessary goal.
Commensurate with its statutory and common law duties, the office handles a vast array of litigation. At any given time, the Attorney General staff represents state agencies and employees in approximately 12,000 lawsuits. Of these, approximately 5,000 are requests for restoration of driver's licenses11 and approximately 2,300 are prisoner complaints against the Michigan Department of Corrections.12
While the Department is defending these cases, it is also representing the state and its departments in approximately 17,000 additional cases filed by the Attorney General. Of these cases, more than half are petitions filed in the Family Division of Wayne County Circuit Court seeking termination of parental rights or other action to protect the interests of Wayne County children. The Attorney General brings approximately 2,000 collection actions13 and approximately 2,000 unemployment claims per year.14 The remaining 4,000 civil actions cover every subject from agriculture to worker's compensation. Altogether, the Attorney General carries a litigation caseload of about 29,000 cases, in addition to 4,000 administrative matters.
In most instances, the lower court pleadings in departmental litigation (e.g., answers, motions, discovery papers, etc.) are handled by division-level assistant attorneys general, who are expected to file clear and concise legal papers. Some dispositive motions in major cases, and all potential civil and criminal complaints, are submitted to the Attorney General's Litigation Coordinator, Michael C. McDaniel, for review and approval before filing.15 The review and approval process assures that legal documents filed on behalf of the state are well-written, straightforward, and clearly express the state's legal position. The Litigation Coordinator also reviews the document to assure that all allegations are stated without rancor, and that the legal position is supportable and consistent with the policies of the Attorney General and with past positions taken on similar issues.
PLAIN ENGLISH IN STATE APPEALS AND OTHER MISCELLANEOUS DOCUMENTS
The Attorney General represents the state in state and federal appellate courts, including the Michigan Supreme Court and the U.S. Supreme Court. The Department's Appellate Division, headed by Solicitor General Thomas L. Casey, coordinates the Department's appellate activities.16 In most appeals, briefs are initially prepared by the assistant attorney general who handled the matter in the trial court or before the state agency.
Before filing, briefs are reviewed by the assistant in charge of the division involved in the appeal and then by an experienced lawyer in the Appellate Division. In cases of major significance, draft appellate briefs are also reviewed by the Deputy Attorney General or the Attorney General. Each level of review assures that the Department's appeal papers are thoroughly researched and well-written in plain English. Like other litigation papers, appellate briefs are reviewed to assure that they clearly express the state's legal position and that the arguments are consistent with departmental policy and with past briefs filed on similar issues.
In addition to opinions, litigation papers, and appellate briefs, assistant attorneys general perform a wide variety of daily assignments requiring an application of plain English principles. Each day, the Department's lawyers prepare memoranda of advice, complex transactional documents such as contracts, leases, or bond documents, and correspondence to lawyers, governmental officials, and members of the public. The Department encourages its attorneys to use plain English in these and all legal papers. Further, communication skills, including clear, concise legal writing, are an important element in the Department's annual performance review of each assistant attorney general.
Individual employees of the Department have likewise embraced the Attorney General's emphasis on plain English. Two assistant attorneys general serve on the Plain English Committee. Recently, Assistant Attorney General Matthew H. Rick, of the Department's State Affairs Division, developed a new plain English "proof of mailing" form for use by the Department. The new form eliminates arcane legalistic phrases such as "being first duly sworn," "deposes and says," and "plainly addressed" in favor of plain English, stating the date the notice was sent, how it was sent, and to whom it was sent. The form has been added to the Department's file server and is now available, through a simple mouse click, to all Department personnel.
Attorney General Granholm's commitment to quality legal writing has not gone unnoticed by the Plain English Committee. In 1999, the committee presented the Department with clarity awards citing a formal opinion; a motion for summary disposition; administrative rules adopted by a state agency; and a proof of mailing legal form.
The Attorney General believes that good writing, in plain English, is an essential part of good lawyering. Good lawyers write well and allow their writing to be understood by lawyers and laypersons alike. We happily join our colleagues in the private bar who believe that good lawyers serve the public and uplift our profession by communicating in plain English.
1.MCL 14.32; MSA 3.185.
2.LaFountain v Attorney General, 200 Mich App 262, 264; 503 NW2d 739 (1993).
3.Traverse City School Dist v Attorney General, 384 Mich 390, 410, n 2; 185 NW2d 9 (1971); Queen Airmotive, Inc v Dep't of Treasury, 105 Mich App 231, 236; 306 NW2d 461 (1981); People v Penn, 102 Mich App 731; 302 NW2d 298 (1981).
4.Macomb Co Prosecutor v Murphy, 233 Mich App 372, 382; 592 NW2d 745 (1999); Indenbaum v Mich Bd of Medicine, 213 Mich App 263, 274; 539 NW2d 574 (1995).
5.MCL 14.28; MSA 3.181.
6.MCL 14.101; MSA 3.211; Butcher v Twp of Grosse Ile, 387 Mich 42; 194 NW2d 845 (1972).
7.MCL 14.29; MSA 3.182.
8.MCL 600.6419; MSA 27A.6419(1).
9.MCL 14.143; MSA 3.243.
10.MCL 14.261; MSA 26.1200(11).
11.MCL 257.323; MSA 9.2023.
12.This figure includes appeals to circuit court of the denial of requests for parole, pursuant to MCL 791.234(7); MSA 28.2304.
13.MCL 14.131, 134; MSA 3.231, 234 provide that the Attorney General may bring a civil action "for the purpose of collecting all past due moneys and accounts which are owing to the State of Michigan or any department, commission or institution thereof."
14.MCL 421.11; MSA 17.511.
15.The Litigation Coordinator oversees the department's litigation and makes recommendations to the Attorney General and the Deputy Attorney General on civil settlements and consent judgments, as well as criminal plea agreements.
16.The Solicitor General is a statutory position appointed by the Attorney General to represent the state in the Supreme Court. MCL 14.28; MSA 3.181.