VA attorney general refuses to defend gay marriage ban

[hajario]

@pkbites

Where does this AG get the authority to declare what’s constitutional and whats not? That is a role for the [State and U.S.] supreme courts to decide. That’s part of the separation of powers our form of government is based on.

He should also decide not to take on a case that he has no chance of winning to save the people of VA money and effort that could be spent on other things.

If this Attorney General is able to not do his job on this issue claiming his belief of unconstitutionality, what’s to stop him or any other AG from refusing to enforce any law due to their belief and not due to a court ruling? What if someone like Wayne Lapierre gets elected as AG of some state. How happy will you be when he stops enforcing any gun law on the books due to his belief they are unconstitutional?

As has already been explained more than once, this has nothing to do with enforcement. The current law is being enforced and the AG has no plans to change that. This is about not defending the case should it come to court.

[Bryan_Ekers]

@pkbites

This trend is dangerous and a huge middle finger to our form of self governance.

Meh, anyone who voted to ban gay marriage is well deserving of a middle finger.

[iamthewalrus_3]

@pkbites

Where does this AG get the authority to declare what’s constitutional and whats not? That is a role for the [State and U.S.] supreme courts to decide. That’s part of the separation of powers our form of government is based on.

I don’t think so. Everyone who takes an oath of office and swears to uphold the Constitution has a duty to interpret it to the best of their ability and to do their best to uphold it.

And when people differ on their interpretation, the courts decide.

I am also interested in Bricker’s answer about whether he thinks the attorney general (or any non-judiciary public official) has any leeway in interpreting the Constitutionality of a law.

[Really_Not_All_That_Bright]

@pkbites

If this Attorney General is able to not do his job on this issue claiming his belief of unconstitutionality, what’s to stop him or any other AG from refusing to enforce any law due to their belief and not due to a court ruling? What if someone like Wayne Lapierre gets elected as AG of some state. How happy will you be when he stops enforcing any gun law on the books due to his belief they are unconstitutional?

As has already been explained, he is enforcing the law (although since this is a purely civil matter, he has no enforcement obligations). He is not defending it against a constitutional challenge. Considering the lecture you attempted to give on the duties of an attorney general, you should probably appreciate the distinction.

[pkbites]

@Bryan_Ekers

Meh, anyone who voted to ban gay marriage is well deserving of a middle finger.

You could say that about any law you don’t like. It doesn’t change the fact that a majority in that state voted for it and it has yet to be declared unconstitutional by anyone except a self important Attorney General.

Applauding an official who refuses to do his job because of a law you don’t personally like completely negates our system of law. If you don’t like this law get the proper avenues to declare it unconstitutional, or convince the majority to repeal it.

[Really_Not_All_That_Bright]

@pkbites

If you don’t like this law get the proper avenues to declare it unconstitutional, or convince the majority to repeal it.

If you don’t like the AG’s action you can petition for a recall hearing in circuit court. Well, you can’t, but an aggrieved Virginian could.

For the record, I agree with the general proposition that attorneys general should either defend laws, or deputize somebody to do it. I just wish you’d get your facts straight.

[pkbites]

@iamthewalrus_3

I don’t think so. Everyone who takes an oath of office and swears to uphold the Constitution has a duty to interpret it to the best of their ability and to do their best to uphold it.

Everyone? I took an oath to uphold both the state and U.S. Constitution. Had I upheld it in the way I personally interpreted it that wouldn’t have worked out too well for me.

[Really_Not_All_That_Bright]

@Falchion

Also, what about imputed conflicts? I’m sure there are different rules for the AG’s office, but in a regular litigation, a law firm would be disqualified in a heartbeat.

My less than thorough review of VA law on the topic suggests that a “Chinese wall” arrangement would be sufficient to cure any conflict:

Jurisdictions that follow the minority rule prohibit screening to remedy imputed conflicts and per se disqualify the entire prosecutor’s office, regardless of the good faith intent and motivation of the prosecutors involved. See State v. Latigue, 108 Ariz. 521, 522-23, 502 P.2d 1340, 1341-42 (1972); Younger v. Superior Court, 77 Cal.App.3d 892, 896, 144 Cal.Rptr. 34, 37 (1978); People v. Stevens, 642 P.2d 39, 41 (Colo.Ct.App.1981); State v. Cooper, 63 Ohio Misc. 1, 6-7, 409 N.E.2d 1070, 1073 (1980); People v. Shinkle, 51 N.Y.2d 417, 420-21, 434 N.Y.S.2d 918, 920, 415 N.E.2d 909, 910-11 (1980). Courts in these jurisdictions hold that a per se rule is required to preserve public confidence in the criminal justice system by eliminating any appearance of impropriety. See Stevens, 642 P.2d at 41 (citing Shinkle, 51 N.Y.2d at 420-21, 434 N.Y.S.2d at 920, 415 N.E.2d at 910).11 We hold that the employment of a criminal defendant’s former counsel in a Commonwealth’s Attorney’s office does not per se disqualify the entire office from handling the prosecution of the defendant’s case in a related matter. Instead, whether the apparent conflict of interest created when a criminal defendant’s former counsel joins a Commonwealth’s Attorney’s office justifies the disqualification of other members of the office is a matter committed to the exercise of discretion by the trial court. Pennington, 851 P.2d at 500. We believe that a more flexible, case-by-case approach enables a trial court to protect a criminal defendant from the due process concern at issue-the disclosure of confidences revealed to his attorney during the attorney-client relationship- *574 while avoiding unnecessary disqualifications and other disruptive effects that a per se rule would have on Commonwealth’s Attorney’s offices.12 We are mindful of the opinion of the Virginia State Bar’s Standing Committee on Legal Ethics and Unauthorized Practice of Law that holds that “chinese walls” or other screening procedures do not cure imputed conflicts within a Commonwealth’s Attorney’s office. See Virginia State Bar Standing Committee on Legal Ethics and Unauthorized Practice of Law, Opinion No. 1020 (Jan. 21, 1988) (holding that the plan for erecting a “chinese wall” within a Commonwealth’s Attorney’s office does not eliminate any potential imputed conflicts arising under Rules of the Supreme Court of Virginia Pt. 6, § II, DR 5-105). While we agree that an ethical rule that strives to avoid the appearance of impropriety is a worthy standard for professional conduct, a criminal defendant’s constitutional right to due process does not entitle him to a prosecution free of such appearances. Cf. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980) (stating that a defendant’s Sixth Amendment right to counsel is not violated when his lawyer has a “possible” or “potential” conflict of interest). Instead, a criminal defendant is denied due process only when his former counsel joins a Commonwealth’s Attorney’s office and is not effectively screened from contact with the Commonwealth’s attorneys who are handling the defendant’s case on a related matter.4 **152 *575 See Thompson, 246 So.2d at 763 (holding that a defendant’s due process rights are violated only if his former lawyer prosecutes him on a matter related to the representation or discloses client confidences to other prosecutors); United States v. Goot, 894 F.2d 231, 236-37 (7th Cir.1990), cert. denied, 498 U.S. 811, 111 S.Ct. 45, 112 L.Ed.2d 22 (1990) (holding that defendant’s right to due process was not violated by the employment of his former counsel in the U.S. Attorney’s office where the former counsel recused himself and was screened from the prosecution of defendant’s case).

Lux v. Com., 24 Va. App. 561, 573-75, 484 S.E.2d 145, 151-52 (Va. Ct. App. 1997)Jurisdictions that follow the minority rule prohibit screening to remedy imputed conflicts and per se disqualify the entire prosecutor’s office, regardless of the good faith intent and motivation of the prosecutors involved. See State v. Latigue, 108 Ariz. 521, 522-23, 502 P.2d 1340, 1341-42 (1972); Younger v. Superior Court, 77 Cal.App.3d 892, 896, 144 Cal.Rptr. 34, 37 (1978); People v. Stevens, 642 P.2d 39, 41 (Colo.Ct.App.1981); State v. Cooper, 63 Ohio Misc. 1, 6-7, 409 N.E.2d 1070, 1073 (1980); People v. Shinkle, 51 N.Y.2d 417, 420-21, 434 N.Y.S.2d 918, 920, 415 N.E.2d 909, 910-11 (1980). Courts in these jurisdictions hold that a per se rule is required to preserve public confidence in the criminal justice system by eliminating any appearance of impropriety. See Stevens, 642 P.2d at 41 (citing Shinkle, 51 N.Y.2d at 420-21, 434 N.Y.S.2d at 920, 415 N.E.2d at 910).11 We hold that the employment of a criminal defendant’s former counsel in a Commonwealth’s Attorney’s office does not per se disqualify the entire office from handling the prosecution of the defendant’s case in a related matter. Instead, whether the apparent conflict of interest created when a criminal defendant’s former counsel joins a Commonwealth’s Attorney’s office justifies the disqualification of other members of the office is a matter committed to the exercise of discretion by the trial court. Pennington, 851 P.2d at 500. We believe that a more flexible, case-by-case approach enables a trial court to protect a criminal defendant from the due process concern at issue-the disclosure of confidences revealed to his attorney during the attorney-client relationship- *574 while avoiding unnecessary disqualifications and other disruptive effects that a per se rule would have on Commonwealth’s Attorney’s offices.12 We are mindful of the opinion of the Virginia State Bar’s Standing Committee on Legal Ethics and Unauthorized Practice of Law that holds that “chinese walls” or other screening procedures do not cure imputed conflicts within a Commonwealth’s Attorney’s office. See Virginia State Bar Standing Committee on Legal Ethics and Unauthorized Practice of Law, Opinion No. 1020 (Jan. 21, 1988) (holding that the plan for erecting a “chinese wall” within a Commonwealth’s Attorney’s office does not eliminate any potential imputed conflicts arising under Rules of the Supreme Court of Virginia Pt. 6, § II, DR 5-105). While we agree that an ethical rule that strives to avoid the appearance of impropriety is a worthy standard for professional conduct, a criminal defendant’s constitutional right to due process does not entitle him to a prosecution free of such appearances. Cf. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980) (stating that a defendant’s Sixth Amendment right to counsel is not violated when his lawyer has a “possible” or “potential” conflict of interest). Instead, a criminal defendant is denied due process only when his former counsel joins a Commonwealth’s Attorney’s office and is not effectively screened from contact with the Commonwealth’s attorneys who are handling the defendant’s case on a related matter.4 **152 *575 See Thompson, 246 So.2d at 763 (holding that a defendant’s due process rights are violated only if his former lawyer prosecutes him on a matter related to the representation or discloses client confidences to other prosecutors); United States v. Goot, 894 F.2d 231, 236-37 (7th Cir.1990), cert. denied, 498 U.S. 811, 111 S.Ct. 45, 112 L.Ed.2d 22 (1990) (holding that defendant’s right to due process was not violated by the employment of his former counsel in the U.S. Attorney’s office where the former counsel recused himself and was screened from the prosecution of defendant’s case).

Lux v. Com., 24 Va. App. 561, 573-75, 484 S.E.2d 145, 151-52 (Va. Ct. App. 1997)

Having said that, now that we’re at the appeal stage the conflict seems pretty irrelevant. All the facts are stipulated or at least apparent from the record and the questions remaining are solely of law.

[Falchion]

@Really_Not_All_That_Bright

If you don’t like the AG’s action you can petition for a recall hearing in circuit court. Well, you can’t, but an aggrieved Virginian could.

Well, I know what I’m doing tomorrow!
Actually, one of the problems (other than the fact that I’m at work during all good petitioning hours) is that this is too emotional a subject. If I go and try to recall Herring over this, people will think it’s about same-sex marriage. I need to wait until he fails to defend something that no one cares about.

[Falchion]

@Really_Not_All_That_Bright

My less than thorough review of VA law on the topic suggests that a “Chinese wall” arrangement would be sufficient to cure any conflict:

Having said that, now that we’re at the appeal stage the conflict seems pretty irrelevant. All the facts are stipulated or at least apparent from the record and the questions remaining are solely of law.

Chinese wall is racist. Otherwise, you may be right.

This isn’t at the appeal stage. Both cases are currently in the district court pending outcome (so, importantly, this isn’t a situation in which the AG defends the law, loses and declines to appeal because he knows he’s beat. Those situations might permissibly exist.)

[Really_Not_All_That_Bright]

Maybe you could just write him a strongly worded letter.

ETA: … Oriental wall?

[wolfpup]

@pkbites

This trend is dangerous and a huge middle finger to our form of self governance.

This is happening in the same place that until recently had Ken Cuccinelli – a man who is clinically insane – as their AG and very nearly the next governor. Who, incidentally, was exceptionally active in passing wingnut legal opinions, pushing agendas and pursuing personal vendettas throughout his time in office. This is the place that hates science almost as much as it hates gays, recently taking the novel but perhaps imprudent tactic of responding to sea level rise by trying to legislate the term out of existence, otherwise known as the “King Canute” policy of dealing with the sea. I would raise the semi-serious question of whether some of these folks are capable of self-governance.

@pkbites

Everyone? I took an oath to uphold both the state and U.S. Constitution. Had I upheld it in the way I personally interpreted it that wouldn’t have worked out too well for me.

As already said, declining to defend a law in a hypothetical legal challenge is not the same as failing to enforce it. Also as already said, here and in another context about some of Obama’s actions, there are discretionary powers in executive office which are not comparable to those of, say, a police officer (if that’s what you’re referring to here).

[iamthewalrus_3]

@pkbites

Everyone? I took an oath to uphold both the state and U.S. Constitution. Had I upheld it in the way I personally interpreted it that wouldn’t have worked out too well for me.

Can you be more specific?

I’m willing to be convinced that my claim isn’t workable.

[andros]

@Falchion

I need to wait until he fails to defend something that no one cares about.

AGs at all levels pick and choose cases all the time, don’t they?

[pkbites]

@iamthewalrus_3

Can you be more specific?

I’m willing to be convinced that my claim isn’t workable.

In Wisconsin Peace Officer is a Public Office.

I found the national speed limit to violate the 10th Amendment. What if I just decided not to enforce it?

I find most gun laws to violate the 2nd Amendment. What if I didn’t arrest someone carrying a concealed pistol?

I find abortion violates the constitutional rights of an unborn human being. What if I refused to arrest trespassing protestors at a clinic?

I’d of been fired, and rightfully so! Not enforcing a law is the same as an AG not defending one: it’s a refusal to do the job one was hired to do!

[hajario]

@pkbites

In Wisconsin Peace Officer is a Public Office.

I found the national speed limit to violate the 10th Amendment. What if I just decided not to enforce it?

I find most gun laws to violate the 2nd Amendment. What if I didn’t arrest someone carrying a concealed pistol?

I find abortion violates the constitutional rights of an unborn human being. What if I refused to arrest trespassing protestors at a clinic?

I’d of been fired, and rightfully so! Not enforcing a law is the same as an AG not defending one: it’s a refusal to do the job one was hired to do!

No it isn’t! The AG has discretion! He can use that discretion to decide on which battles to fight!

[Bryan_Ekers]

@pkbites

You could say that about any law you don’t like.

And I especially don’t like laws that try to treat citizens unequally on specious, bigoted ground.

It doesn’t change the fact that a majority in that state voted for it

Middle fingers all around, then.

and it has yet to be declared unconstitutional by anyone except a self important Attorney General.

Good for him. He can read the text of the 14th Amendment and apply it.

Applauding an official who refuses to do his job because of a law you don’t personally like completely negates our system of law. If you don’t like this law get the proper avenues to declare it unconstitutional, or convince the majority to repeal it.

Oh, I’m not applauding him, I’m scorning the people who proposed the law in the first place and those who voted for it.

[Trinopus]

What if he were to defend the law…with deliberate ineptitude, but subtly enough that it wasn’t provable. Like a prizefighter taking a dive. That would satisfy the overt need for him to act to defend the law…but would allow him to undermine the law he doesn’t like. Worse, it would strengthen the case against the law in future appeals.

I mention this because, back when George H.W. Bush was President, his Solicitor General defended a number of anti-abortion laws before the Supreme Court – and it always seemed to me that the guy was sandbagging his own case, fighting it only half-heartedly. It seemed to me that Bush may have wanted to appear to be putting up a pro-life fight, but that his actual moral beliefs weren’t so strongly pro-life, and that he actually preferred to lose the case. Best of both worlds: he can claim to be a champion of the issue…but not actually have to enforce laws he disagreed with.

If the VA AG were seriously playing the game strategically, he could have gone this (somewhat risky) route.

[pkbites]

@Bryan_Ekers

And I especially don’t like laws that try to treat citizens unequally on specious

Do you believe mentally ill people or felons have the right to own firearms? The U.S. Constitution is silent on that. What if a severely mentally ill felon was challenging the law that prohibits him his right of bearing arms and this AG decided not to defend the law. I bet you’d be screaming your head off over it.

[Bryan_Ekers]

@pkbites

Do you believe mentally ill people or felons have the right to own firearms?

Doesn’t sound very specious to me.

The U.S. Constitution is silent on that. What if a severely mentally ill felon was challenging the law that prohibits him his right of bearing arms and this AG decided not to defend the law. I bet you’d be screaming your head off over it.

You’d lose.