OxyMoron: Depends. If he felt he did not have a reasonable chance at victory, then no, he did not commit an ethical violation. If he did think he could win, then yes, he should have appealed. I think the former is more likely given Minnesota’s political predilections (note that the law was struck down based on state constitutional provisions).
I agree that it’s very difficult to sustain a bar complaint on this type of thing – all the AG needs to do is claim he didn’t think an appeal would be successful, and so he decided to save the taxpayers some money. But, of course, a lawyer’s ethical obligations exist whether or not he fears being haled before the state ethics committee, and good lawyers try to honor those obligations even when there isn’t the threat of punishment.
The conservatives and legal types are correct when they say that Pryor’s defence of the no-dildo law does not constitute proof of his feelings about the validity of the law or not.
However, let us be frank – he arose from and is very much a part of the governmental culture that made the dildo ban polticially possible in the first place. This is undeniable. You don’t get to be AG in Alabama by playing the outsider. It is very reasonable to think it is likely that Pryor is comfortable with the dildo ban, especially as he has not spoken out publicly against it. If it were chafing him as it might reasonably be presumed to chafe any sane person, he does have the option of speaking out publicly against it even as he does his legislative duty of defending the inbred hicks who produced the law, and taking whatever flack may arise.
So the VERY BEST case is that he is a man who will publicly support stupid, inane, sexually repressive laws, despite his personal feelings in the matter. In the MUCH MORE LIKELY worst case, he fully supports the law and looks forward to supporting laws like it in higher courts.
In either case, why should any of us want his nomination by Resident Bush to go through?
Dewey, arguing under the banner of fairness, is saying we must keep our minds open. I would counter that we must not allow our brains to fall out in the process.
Evil: As a practical matter, any Alabaman nominee will be from that same political culture. Are you therefore suggesting that any nominee of Bush’s would be inappropriate?
BTW, he does not have the option of “speaking out.” A lawyer owes a duty of care to his client. Try to imagine Johnny Cochran stating at a press conference during the OJ trial that “I really think the sumbitch is guilty, but I’m defending him for reasons of principle” and I think you can understand why. For the AG to state he thinks the law is stupid would undermine his case, and thus breach his obligations to his client.
There may well be good reasons to sink this nomination, but the reasons you provide are not among them.
Evil Captor, stop and think a minute. As DCH noted, the 11th Circuit Court handles duties in Alabama, Georgia and Florida. When was the last time any of those states was considered a hotbed of liberalism? Nominating a conservative to the post isn’t going to cause the cosmos to shift on its axis.
Pryor is qualified to do the job. His political views match those of the majority of the constituency for the territory. DCH has shown the legal reasons Pryor must respond to lawsuits regarding vibrators in the manner he does. Why is his nomination a problem?
IANAL, but I do read newspapers occasionally. I don’t know about Alabama, but here in God’s country a major part of the AG’s job is to give his opinion concerning the constitutionality of various laws. He or she will often recommend against the enforcement of laws which in his opinion do not pass constitutional muster.
To suggest that an AG’s job is only to defend his state’s laws no matter what is disingenuous.
You’ve got to be kidding. The AG of Texas, the highest law enforcement officer in that state, routinely and publically encourages the police not to enforce some laws? How can he do that and not get disbarred?
The portion you quoted from me has nothing to do with the point you’re making.
You misunderstand what an “Attorney General’s Opinion” is. The AG cannot recommend that a law flat-out not be enforced. An AG Opinion is an interpretive document construing how a law will be enforced. It isn’t binding as law, but it is useful to lawyers advising their clients on what they can or can’t do under a new law, and it is persuasive evidence of how the law should be interpreted for a judge having to interpret it.
This example isn’t an AG Opinion, but it’s the first thing that springs to mind and it will illustrate my point. The US has a policy that only $100 worth of cigars (or other merchandise) may be taken from Cuba by Americans visiting that country on permitted business. Problem is, since there’s no legitimate market for Cuban cigars in the US, there’s a difficult valuation question. So the Treasury Department (IIRC) has an informal guideline that $100 = 2 boxes of cigars. That guideline isn’t binding as law – theoretically, a person with two boxes could still be found to have cigars over the proscribed dollar value – but it does allow people to have some yardstick for complying with the law, and a court would almost always take that fact into account in determining guilt or innocence.
What the Treasury Department cannot do is interpret away the rule – they can’t say “you can take away any amount of merchandise you choose.”
Same with AG opinions. The AG may include constitutional considerations in his opinion (e.g., “my office will interpret this statute in a certain way so as to avoid conflicts with constitutional jurisprudence”), but he can’t eviscerate the statute altogether. And with a statue like the one in question, there’s not a lot of wiggle room – it’s pretty straightforward. I don’t think you could, as an AG, interpret this statute in a way that would satisfy the plaintiffs in this lawsuit while still keeping the law on the books.
Actually, if this goes to the Supreme Court and Alabama loses, it would be a good thing. There’s a good chance vibrators would fall under the same category of personal constitutional protected privacy, as outlined in Griswold vs Connecticut or Roe vs Wade.
Ok, Dewey, I’ll try to play Devil’s Advocate here:
Your honor, the State of Alabama has a legitimate government interest in banning clit buzzers. [suppressed snickering]** You can’t just have women pleasuring themselves willy nilly, that would be a threat to masculine dominance! They’d be having fun instead of being in the kitchen, BAREFOOT and PREGNANT like they out to be, so you can yell at them “get me a beer, woman!”**
You have a difficult hurdle to overcome on that score: as Sauron has repeatedly pointed out, the law is not a ban on possession of vibrators; it is a ban on selling them. Since the cops aren’t going to be busting anyone for diddling themselves in the privacy of their own home, the validity of the privacy argument is less than clear.
What you would be arguing for is not a constitutional right to possess such devices, but a constitutional right to make them available for sale. That’s a much harder argument to make.
I’m a transactional lawyer. I would never debase myself by mucking about in a courtroom. I leave that kind of distasteful work to commoners like minty green and Sua Sponte.
I looked up those very same articles for a GQ thread and my Google search was “dildo lawsuit.” Also a lot of fun, and it brought up links to all the other dildo lawsuits out there!
IANAL but Griswold dealt in part with the leagilty of prescibing contraceptives. It’s not IMHO that big a leap from dispnsing through prescription to dispensing through toy store, especially since CT banned non-prescription contraceptive items too. Of course there’s always the Commerce Clause–unless Alabama is makin’ all their own dildoes (yeah I know, I’m just kidding).
Among the other things Bill Pryor has dutifully and impartially done during his tenure as Alabama AG:
[ul][li] Bringing charges against Barnes and Noble for selling the picture books by Jock Sturges and David Hamilton (warning: may be considered creepy links).[/li]
[li] Refusing to sue tobacco companies.[/li]
[li] Promising a “vigorous defense” of Justice Roy Moore’s display of the Ten Commandments in the Rotunda of the Alabama Judicial Building.[/li]
[li] Refusing to prosecute the aforementioned Justice Moore after the Alabama State Ethics Committee voted 5-0 to cite him for ethics violations for holding Baptist prayers in court.[/li]
[li] Enlisting the help of Pat Robertson’s Lawyers for the American Center for Law and Justice to appeal a ruling against prayer in public schools.[/li]
[li] Supporting the streamlining of death penalty case appeals: “I have appointed a record number of prosecutors – a total of nine — to represent the State, and more executions have occurred during my three years as Attorney General than during the terms of any previous Attorney General since the death penalty was reinstated in the late 1970s.”[/li][/ul]
Yep, the guy is probably just doing his job as he sees it. Anyone care to speculate who he thinks his boss is?
The statute in Griswold did not criminalize prescribing contraception, but rather possessing it. Estelle Griswold was prosecuted as “aider and abettor.” Indeed, a key issue in the case was her ability to assert the rights of third parties (e.g., married couples who wanted to utilize contraception). Griswold was not challenging the law as a dispenser of contraception, but rather on behalf of Connecticut married couples who wished to use it.
I’m not sure that the case comes out the same way (at least, given the reasoning applied by the court) if the Connecticut law simply proscribed the sale of birth control within the boundaries of the state.
