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      "MILDRED R. TICE v. DEPARTMENT OF TRANSPORTATION, HAYWOOD WARD, OTIS EVANS, RICHARD EVANS and TOMMY WILLIAMS"
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        "text": "WHICHARD, Judge.\nt \u2014 I\nThe appeal is from an interlocutory order. Because of the significance of the issue involved, however, we treat the appeal as a petition for a writ of certiorari and allow the writ in order to dispose of the issue on its merits. See Stone v. Martin, 53 N.C. App. 600, 602, 281 S.E. 2d 402, 403 (1981), rehearing, 56 N.C. App. 473, 289 S.E. 2d 898, disc. rev. denied, 306 N.C. 392, 294 S.E. 2d 220 (1982); Plumbing Co. v. Associates, 37 N.C. App. 149, 152, 245 S.E. 2d 555, 557, disc. rev. denied, 295 N.C. 648, 248 S.E. 2d 250 (1978).\nThe issue is whether the Attorney General\u2019s office, when representing a State department pursuant to G.S. 114-2(2), has authority to enter a consent judgment without the consent of the department. We hold that it does not, and we thus affirm the order vacating a consent judgment entered without the consent of defendant DOT.\nIII.\nPlaintiff brought this action against defendant DOT and four individual defendants to establish title to a strip of land adjacent to other land which she owned. The strip is approximately one hundred feet long and fifty feet wide. It is located at the end of a State maintained road and connects the road to the waters of Tulls Creek Bay. Plaintiff also sought injunctive relief to prohibit defendant DOT from trespassing on her property. In its answer, defendant DOT admitted that it had operated a roadway adjacent to plaintiffs property, but claimed an interest in the land which plaintiff claimed as hers.\nAfter almost two years of negotiations, the assistant Attorney General representing defendant DOT entered a consent judgment with plaintiff. The consent judgment established the boundaries of the State road and enjoined plaintiff from interfering with the maintenance and public use of the road. There is neither allegation nor evidence that the assistant Attorney General acted in bad faith in signing the consent judgment on behalf of defendant DOT.\nSubsequently defendant DOT filed a motion to set aside the stipulations upon which the consent judgment was based and the consent judgment itself. The grounds alleged as the basis for the motion were that the stipulations were untrue; that they were executed by the assistant Attorney General representing defendant DOT \u201cby mistake and inadvertence under a misapprehension of the true facts\u201d; and that the assistant Attorney General \u201cwas without authority from the [DOT], or any of its authorized officials, to execute the consent judgment on its behalf.\u201d\nThe trial court made findings of fact that the assistant Attorney General did not have defendant DOT\u2019s consent and was not authorized to consent to the judgment. The findings are supported by evidence in the record and are therefore conclusive. Harrelson v. Insurance Co., 272 N.C. 603, 609, 158 S.E. 2d 812, 817 (1968).\nThe court concluded that the consent to the judgment conceded a substantial right of defendant DOT without its consent and was void. It therefore vacated the order, ordered that the case file be reopened, and further ordered that the case be added to the regular calendar for trial. The court\u2019s conclusion, and its action pursuant thereto, are subject to review. Id.\nIV.\nG.S. 114-2(2) provides that one of the duties of the Attorney General is to \u201crepresent all State departments, agencies, institutions, commissions, bureaus or other organized activities of the State which receive support in whole or in part from the State.\u201d See also G.S. 147-17(b). The departments may not hire other counsel unless so authorized by the Governor. G.S. 14747(a). Defendant DOT contends that while the statute prescribes that the Attorney General represent it, he cannot enter a consent judgment on its behalf without its consent.\nGenerally, an attorney cannot enter a consent judgment without the consent of his client. Howard v. Boyce, 254 N.C. 255, 264-66, 118 S.E. 2d 897, 903-04 (1961). \u201c[A]bsence of authority to consent . . . deprive[s] the judgment of any sort of validity.\u201d Bath v. Norman, 226 N.C. 502, 504, 39 S.E. 2d 363, 364 (1946).\nIn Bath a town brought an action in which it sought to be declared the owner of certain land. The town attorney, without the town\u2019s consent or knowledge, entered a consent judgment. The Court held that even though the attorney acted in good faith, the consent judgment was void because he did not in fact have the town\u2019s consent. It stated that\n[i]n this State, as generally throughout the Union, the client, municipal or otherwise, is bound by many acts of his attorney incidental to the ordinary conduct of the case, often of great importance. But that power does not extend to an act of the sort under review, or to any other substantial compromise of the client\u2019\u00b6 right ....\nBath, supra, 226 N.C. at 506, 39 S.E. 2d at 365.\nV.\nThe question here is whether the legislature, in enacting G.S. 114-2(2), intended to deviate from the above general rule by allowing the Attorney General, when representing a State department, to enter a consent judgment without the department\u2019s consent. This situation must be distinguished from situations in which the Attorney General is prosecuting an appeal or in which he brings an action on behalf of the State. The general rule in those situations is that the Attorney General has control of the action and may settle it when he determines it is in the best interest of the State to do sp. See generally State v. Thompson, 10 N.C. (3 Hawks) 613 (1825); State ex rel Derryberry v. Kerr-McGee Corp., 516 P. 2d 813 (Okla. 1973); 7 Am. Jur. 2d Attorney General \u00a7 18 (1980); Annot., 81 A.L.R. 124 (1932).\nVI.\nBrief examination of the development of the office of Attorney General, which originated at common law, is appropriate to decision of the issue. Originally, \u201cthe Crown did not act through a single attorney at all. Instead, the King appointed numerous legal representatives and granted each the authority to appear only in particular courts, on particular matters, or in the courts of particular geographical areas.\u201d Edmisten, The Common Law Powers of the Attorney General of North Carolina, 9 N.C. Cent. L.J. 1, 4 (1977). As the office evolved in England, the Attorney General became the \u201cChief Legal Advisor for the Crown and had charge of the management of all legal affairs and the prosecution of all suits in which the Crown was interested.\u201d Morgan, The Office of the Attorney General, 2 N.C. Cent. L.J. 165, 166 (1970); see 6 W. Holdsworth, A History of English Law 467-68 (1924); National Association of Attorneys General Committee on the Office of Attorney General, Report on the Office of Attorney General \u00a7\u00a7 1.1 to .13, at 11-19 (1971) (hereinafter National Association); Cooley, Predecessors of the Federal Attorney General: The Attorney General in England and the American Colonies, 2 Am. J. of Legal History 304 (1958).\nThe duties of the Attorney General in England included the following:\n(1) To prosecute all actions necessary for the protection and defense of the property and revenue of the Crown.\n(2) By information, to bring certain classes of persons accused of crimes and misdemeanors to trial.\n(3) By \u201cscire facias, \u201d to revoke and annul grants made by the Crown improperly, or when forfeited by the grantee.\n(4) By information, to recover money and other chattels, or damages for wrongs committed on the land, or other possessions of the Crown.\n(5) By writ of mandamus, to compel the admission of an officer duly chosen to his office, and to compel his restoration when illegally ousted.\n(6) By information to chancery, to enforce trusts, and to prevent public nuisances, and the abuse of trust powers.\nMorgan, supra, at 165.\nDuring the colonial period the office of Attorney General developed in the American colonies. \u201cNot surprisingly, these colonial Attorneys General were viewed as possessing the common law powers or then-current powers of the Attorney General in England.\u201d Edmisten, supra, at 5. The accepted view was that \u201cthe Attorney General had the duty and the exclusive right to represent these governments and their agencies and officers.\u201d Morgan, supra, at 167.\nThe period after the American revolution, however, \u201cwas characterized by a distrust of centralized government. The Attorney General was made an independently elected official in most states, but he was deprived of much of his power over legal matters at both the state and the local level. Legal services, like state government organization, were fragmented.\u201d National Association, supra, \u00a7 5.12, at 272. A trend began to develop in which states passed legislation allowing state agencies to hire their own attorneys or allowing the Governor to appoint them. Morgan, supra, at 167; National Association, supra, \u00a7 1.34, at 49-51. Among the reasons given for the trend were \u201cthe distrust of centralization and the recognition of certain weaknesses in some of the Attorneys General.\u201d Morgan, supra, at 167.\nVII.\nOur legislature has acted counter to this trend. It has provided that \u201c[t]he Attorney General shall be counsel for all departments, agencies, institutions, commissions, bureaus or other organized activities of the State which receive support in whole or in part from the State.\u201d G.S. 14747(b). It has further provided that \u201c[n]o department, agency, institution, commission, bureau or other organized activity of the State which receives support in whole or in part from the State shall employ any counsel, except with the approval of the Governor.\u201d G.S. 14747(a).\nOur legislature also has created numerous state agencies and departments, each with its own specific responsibilities and areas of expertise. See G.S. 143A-1 to -245; G.S. 143B-1 to -492. The general purpose of the department in question here, defendant DOT,\nis to provide for the necessary planning, construction, maintenance, and operation of an integrated statewide transportation system for the economical and safe transportation of people and goods as provided for by law. The Department shall also provide and maintain an accurate register of transportation vehicles as provided by statutes, and the Department shall enforce the laws of this State relating to transportation safety assigned to the Department. The Department of Transportation shall be responsible for all of the transportation functions of the executive branch of the State as provided by law except those functions delegated to the Utilities Commission, the State Ports Authority, and the Commissioners of Navigation and Pilotage as provided for by Chapter 76.\nG.S. 143B-346. Defendant DOT has been given the power\nto locate and acquire rights-of-way for any new roads that may be necessary for a State highway system, with full power to widen, relocate, change or alter the grade or location thereof and to change or relocate any existing roads that the Department of Transportation may now own or may acquire; to acquire by gift, purchase, or otherwise, any road or highway, or tract of land or other property whatsoever that may be necessary for a State highway system.\nG.S. 136-18(2).\nIt is thus clear that the legislature has provided a comprehensive scheme in which all decisions relating to the State highway system have been delegated to defendant DOT. This form of departmentalized government, with delineated responsibilities and areas of expertise, was unknown at common law. We do not believe the legislature, by providing that the Attorney General would serve as counsel for State departments, intended to authorize him to make decisions in areas which have been specifically delegated to a designated department. That would be the effect of allowing the Attorney General to enter, without the consent of defendant DOT, a consent judgment which establishes the boundaries of a road and gives defendant DOT a right-of-way. We believe, instead, that the legislature intended that when the Attorney General represents a State department pursuant to G.S. 114-2(2), the traditional attorney-client relationship should exist. The Attorney General thus would not have authority to enter a consent judgment on behalf of a State department without the consent of a duly authorized department official.\nVIII.\nWe believe considerations of sound public policy also suggest this conclusion. The Governor is a constitutional officer elected by the qualified voters of the State. N.C. Const, art. Ill, \u00a7 2. The executive power of the State is vested in him, N.C. Const, art. Ill, \u00a7 1; and he has the duty to supervise the official conduct of all executive officers, G.S. 147-12(1). The Attorney General is a constitutional officer elected independently of the Governor, N.C. Const, art. Ill, \u00a7 7; is the head of the Department of Justice, G.S. 143A-49; and has the duty to supervise that Department\u2019s activities, G.S. 114-1. The constitutional independence of these offices, and their differing functions and duties, create clear potential for conflict between their respective holders. In the event of such conflict, power in the Attorney General to resolve, without their consent, controversies involving agencies or departments under the supervision of the Governor, could be abused by exercise in a manner effectively derogative of the Governor\u2019s constitutional duties to exercise executive power and to supervise the official conduct of all executive officers. We do not believe the General Assembly, in the enactment of G.S. 114-2(2), intended to create such potential.\nSuch potential also could cause State agencies and departments, with the approval of the Governor as required by G.S. 147-17(a), to engage in more extensive employment of their own counsel. The traditional attorney-client relationship would exist between such counsel and the agencies or departments they would represent, and such counsel thus could not enter consent judgments without the consent of the agency or department. Bath v. Norman, supra.\nThis practice would, however, cause additional expense to the State. It would also undermine, and perhaps ultimately destroy, the customary role of the Attorney General\u2019s office in representing the agencies and departments of the State, a role which historically has served the State well.\nThus, to avoid additional expense to the State, and to preserve for the Attorney General\u2019s office a well-established role of proven utility, we believe the better rule to be that an agency or department of the State should have the right possessed by other litigants to determine whether its counsel, whether the Attorney General or otherwise, can enter a consent judgment on its behalf. Such a right is also consonant with fulfillment by the respective agencies and departments of the State of their statutorily assigned duties.\nIX.\nWe note that two state supreme courts, in analogous situations, have held as we do. In so doing, the Georgia Supreme Court stated that the Georgia Code \u201cdoes not even permit any attorney to bind his client by settlement for less than the full sum claimed, unless express authority be given by the client. ... It would seem strange, therefore, that the state should be bound by her attorneys without her express authority, when none of her people would be by theirs.\u201d State v. Southwestern Railroad, 66 Ga. 403, 407 (1880). The North Dakota Supreme Court stated that\nalthough it is perfectly obvious under the statute that the attorney general is the general and the legal adviser of the various departments and officers of the state government, . . . this does not mean that the attorney general, standing in the position of an attorney to a client, who happens to be an officer of the government, steps into the shoes of such client in wholly directing the defense and the legal steps to be taken in opposition or contrary to the wishes and demands of his client or the officer or department concerned.\nState ex rel Amerland v. Hagan, 44 N.D. 306, 311, 175 N.W. 372, 374 (1919), overruled on other grounds, Benson v. North Dakota Workmen\u2019s Compensation Bureau, 283 N.W. 2d 96 (N.D. 1979).\nX.\nIn summary, we find nothing in the common law powers of the Attorney General which grants him authority to enter consent judgments binding the agencies and departments of the State without their consent. Our statutes do not expressly grant such power. The assignment of specific responsibilities and duties to the various agencies and departments would appear to indicate legislative intent to the contrary. Given the constitutional and statutory structure of state government, and the assignment of duties and responsibilities between and among its officers, agencies, and departments, considerations of sound public policy also suggest the contrary rule.\nWe thus hold that the Attorney General, when representing the \u201cdepartments, agencies, institutions, commissions, bureaus or other organized activities of the State\u201d pursuant to G.S. 147-17(b), is bound by the traditional rule governing the attorney-client relationship, and cannot enter a consent judgment without the consent of the entity represented. Howard v. Boyce, supra; Bath v. Norman, supra. The trial court found, on the basis of competent evidence in the record, that the judgment in question was entered without the consent of defendant DOT. It thus properly concluded that the judgment was void and should be vacated. Its order so doing is\nAffirmed.\nJudges Webb and Wells concur.",
        "type": "majority",
        "author": "WHICHARD, Judge."
      }
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    "attorneys": [
      "Attorney General Edmisten, by Special Deputy Attorney General James B. Richmond, for the State.",
      "Trimpi Thompson & Nash, by John G. Trimpi and C. Everett Thompson, for plaintiff appellant."
    ],
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    "head_matter": "MILDRED R. TICE v. DEPARTMENT OF TRANSPORTATION, HAYWOOD WARD, OTIS EVANS, RICHARD EVANS and TOMMY WILLIAMS\nNo. 831SC63\n(Filed 6 March 1984)\nAttorney General \u00a7 1\u2014 representation of State department \u2014 authority to enter consent judgment \u2014 necessity for consent of department\nThe Attorney General\u2019s office, when representing a State department pursuant to G.S. 114-2(2) and G.S. 147-17(b), has no authority to enter a consent judgment without the consent of the department.\nAPPEAL by plaintiff from Allsbrook, Judge. Order entered 9 November 1982 in Superior Court, CURRITUCK County. Heard in the Court of Appeals 7 December 1983.\nPlaintiff appeals from an order vacating a consent judgment entered between plaintiff and an assistant Attorney General purporting to act on behalf of defendant Department of Transportation (DOT).\nAttorney General Edmisten, by Special Deputy Attorney General James B. Richmond, for the State.\nTrimpi Thompson & Nash, by John G. Trimpi and C. Everett Thompson, for plaintiff appellant."
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