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Iowa attorney general awaits legislative verdict

ROD BOSHART Journal Des Moines BureauMay 20, 2019

DES MOINES — Iowa Attorney General Tom Miller admits he has a lot on his plate these days.

Miller, 74, just finished a week in which he and his consumer-protection legal team took on some major players in the pharmaceutical industry and lent his support to one of the newest entries in the 2020 Democratic presidential sweepstakes by traveling the campaign trail with Montana Gov. Steve Bullock.

A 10-term Democrat in his 37th year as the longest-serving attorney general in the nation, Miller has built a reputation as a fighter for the people he is elected to defend through his work on major litigation that resulted in tobacco, Microsoft and bank mortgage settlements.

But as the state’s chief litigator, Miller soon may have to decide whether he will litigate on his own behalf if Gov. Kim Reynolds does not exercise her item-veto power on legislation sitting on her desk that includes restricting his office’s power to join multistate legal actions outside of Iowa.

Tucked in Senate File 615, a budget bill that appropriates $584 million for a variety of justice-system functions including more state troopers and criminal investigators, is a provision that would require the attorney general to get permission from the governor, Executive Council or Legislature before joining an out-of-state lawsuit.

Iowa law gives the governor authority to veto line items of appropriation bills. So the Republican governor must decide whether she approves the bill passed by the Republican-controlled Legislature in its entirety or strikes the provision that would be the only limitation of its kind on a state attorney general in the country.

Reynolds has not tipped her hand on what she will decide, but faces a May 27 deadline.

Miller said he has made his case to her.

”I had a good visit with the governor. She heard me out and I had my say,” Miller said in an interview last week. “It’s in her hands now.”

A bipartisan group of current and former state attorneys general also recently wrote Reynolds imploring her to veto the provision that was sparked in part from Miller’s participation in suits challenging Trump administration policies.

Imposing such limitations on multistate lawsuits would jeopardize the checks and balances inherent with an independently elected attorney general’s ability to challenge deceptive or fraudulent practices, protect consumers and recover financial damages, they argued.

During legislative floor debates last month, Democrats argued the action was politically motivated in the wake of Miller’s decision to join multiple coalitions of state attorneys general in opposing federal policies under Republican President Donald Trump, including a federal clean energy policy, the immigration practice of separating immigrant children from their families and an attempt to place a citizenship question on the upcoming Census.

Republicans countered that Miller was less aggressive in challenging federal policies under the administration of President Barack Obama, a Democrat who won Miller’s early endorsement.

Rep. Gary Worthan, R-Storm Lake, a justice-systems appropriations subcommittee co-chairman who favored the restriction, noted the issue was political “but that sword cuts both ways.”

“It’s political because this attorney general has taken part in out-of-state lawsuits completely contrary to actions taken by the Legislature and signed by the governor,” Worthan said during the House floor debate. “Those are the types of action we are trying to restrict … because it’s the governor and Legislature that sets the agenda for the state, not the attorney general.”

Miller said he believes he has a special obligation to protect the powers and duties of the attorney general but he called it premature to say whether he would bring a legal challenge should the governor sign the restriction into law.

“That’s something we would look at a little later on,” Miller said. “We would want to be secure on the law. There are arguments both ways that we would consider.”

Along with the separate of powers concerns, Miller said there also are questions raised by the legislative wording — such as what would happen if two of the three deciding entities approved an out-of-state action but the third didn’t?

“I don’t know what would be the case,” the attorney general said.

Miller noted that he would not have been barred from taking action last week to join a multistate consumer-fraud legal battle by suing Purdue Pharma and its former corporate leader, alleging the drug company helped stoke the nation’s opioid crisis by engaging in deceptive marketing of highly addictive OxyContin. That lawsuit was filed in Iowa.

However, Miller might have been required to get approval, if the provision becomes law, to join an out-of-state lawsuit alleging a scheme to fix prices for 100-plus drugs. Miller joined 43 attorneys general last week in announcing a lawsuit against Teva Pharmaceuticals and 19 of the nation’s largest generic drug manufacturers alleging a broad conspiracy to artificially inflate and manipulate prices, reduce competition and unreasonably restrain trade for more than 100 different generic drugs.

That lawsuit was filed in U.S. District Court in Connecticut and named 15 individual senior executive defendants at the heart of an alleged collusion conspiracy who were responsible for sales, marketing, pricing and operations.

Iowa consumers could gain substantially from those challenges to pharmaceutical industry practices if the suits are successful. But the financial recovery would not approach the magnitude of the 1998 landmark Master Settlement Agreement with tobacco companies in which Miller played a major role. Iowa has received more than $1.25 billion from tobacco companies over the last 21 years in what was the largest settlement in U.S. history.

Miller counts the anti-smoking efforts in that case, settlements in the Microsoft case and the mortgage foreclosures, and work on criminal sentencing reform by his office, as the hallmarks of his legacy with the possibility that his run could end when his current term expires.

During a recent appearance on Iowa Public Television’s “Iowa Press,” Miller offered a caveat to reporters who asked about indications he has made that this term could be his last, telling the panel, “I said that last time and changed my mind, but I think it’s likely that this will be my last term.”

Asked again last week, Miller said, “I’m saying that’s possible. That’s maybe likely but not definite. I haven’t closed any door yet.”

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