What a dildo!!

[Lord Jim]

knows that he has an indefensible position and the end result is a foregone conclusion.

If the law regarding the duties of the AG reads the way it does in North Carolina Bill, that's not his call...It doesn't say:

It shall be the duty of the Attorney General:

(1)To defend all actions in the appellate division in which the State shall be interested, or a party, and to appear for the State in any other court or tribunal in any cause or matter, civil or criminal, in which the State may be a party or interested, unless the Attorney General knows that he has an indefensible position and the end result is a foregone conclusion.

If he believes (and that's what this would be, a subjective belief) that there is absolutely no way he could possibly craft any defense for it, then he's saying he can't do his job, and he should quit.

Or as I said earlier, at the very least he should assign the defense of the law to someone else so that at least the legal obligations of his office are fulfilled. (Which is the solution that was ultimately crafted in the case of the Kentucky court clerk)

[Big RR]

Well Jim, AGs have a lot of discretion in what to do or not do, so I don't think the case is as open and shut as you suggest; e.g. certain ethical/legal obligations require him/her to act a certain way in lawsuit and to refrain from things like offering perjured testimony, and an AG could decline to prosecute someone because in his/her opinion a prosecution would be pointless. Likewise, I would think the AG would have the same discretion regarding the defense of a lawsuit doomed to legal failure, and I would think the AG would have an ethical obligation not to waster everyone's time if there is no real defense. Of course, the governor could always dismiss the AG or engage a special counsel for the purpose, but an AG is not just the governor's hired gun who is required to do what (s)he is told, (s)he is required to exercise good legal judgment and not bring frivolous litigation.

[MajGenl.Meade]

This AG did not "initiate" a frivolous lawsuit - nor did he initiate any suit at all. The suit was brought by two private companies in opposition to a law passed by the legislature and signed by the governor. They were turned down by the first court and then appealed that decision.

It was the job of the AG office to defend the laws passed by the state when challenged in court. The AG did not have the job of failing to defend the law. Granted, if he personally felt that principles demanded he resign rather than defend the case, he could have done that. Evidently he thought that principles demanded he do his job as advertised, which (I could be wrong) is to uphold the law.

Personally I think it's a rather silly law but that was to be decided in court - which it was

[Big RR]

Meade--if someone brings an action and the state does not respond, the action ends (granted the law would likely be thrown out); the AG has to make a legal decision whether a defense is warranted or not. The AG is not a machine who has to respond, (s)he has to exercise his/her legal judgment in deciding a course of action. As I said, the decision is ultimately up to the governor, but the AG has an obligation to the state to be an attorney, not just a hired gun. Not every case has to be litigated.

[Lord Jim]

Likewise, I would think the AG would have the same discretion regarding the defense of a lawsuit doomed to legal failure and I would think the AG would have an ethical obligation not to waster everyone's time if there is no real defense.

I'm puzzled as to why you would think that, when one looks at the language of the law governing the duties of the AG in North Carolina:

114-2. Duties.

It shall be the duty of the Attorney General:

(1)To defend all actions in the appellate division in which the State shall be interested, or a party, and to appear for the State in any other court or tribunal in any cause or matter, civil or criminal, in which the State may be a party or interested.

I'm not seeing anything in there about "except when the AG thinks the defense would be 'doomed to failure'", or "except when the AG thinks it would be 'a waste of everyone's time'"...

No, again, I'm seeing the words "shall". "all" and "any"....

And if a state AG for some reason believed that doing his legally required job somehow conflicted with his ethical obligations as an attorney and officer of the court, then once again, he should probably leave that job...

[Big RR]

Well Jim, I disagree; the law is not intended to be read so literally. Bringing a baseless lawsuit (or prolonging it by a baseless dissent) is illegal, and an AG, as the chief legal officer, should not act in an illegal way. Certainly, (s)he could choose to leave when faced with the challenge, but then the governor could also choose to dismiss him/her or hire a special counsel as well. Again, I think an AG is appointed to exercise judgment, not to be a hired gun and prolong pointless litigation. The governor is the AG's boss and the voice of the people, and as the client can choose to follow that advice, or not follow it and engage a new counsel. I do not think the AG has to resign.

On a private basis, I have had several times when I disagreed with my employer about a course of action; in each case we discussed it and reached an agreement on how to proceed that I was happy with. Of course they could have dismissed me, but then sensible people engage a person for most any position (and especially a counsel position) to exercise their judgment and not just follow in a knee jerk fashion; ignoring that advice is the easiest way to get into trouble.

[Lord Jim]

Bringing a baseless lawsuit (or prolonging it by a baseless dissent) is illegal, and an AG, as the chief legal officer, should not act in an illegal way.

But that's not the issue here...

Again, I think an AG is appointed to exercise judgment, not to be a hired gun and prolong pointless litigation. The governor is the AG's boss

That's not accurate; in North Carolina, (as in most states except for a couple...I believe New Jersey may be one of them) the state Attorney General is an elected official, and not appointed by or subordinate to the Governor.

But you're probably right on the point that if the state AG refuses to defend in court a law passed by the legislature and signed by the Governor the Governor could either have his own office's legal counsel take on the responsibility, or appoint an independent counsel to do so.

[Big RR]

But that's not the issue here...

Isn't it? If the suit is doomed to failure in the AG's mind I think it is.

As for election of the AG, I did not check in NC if the AG is elected. Thanks for that information.
s

[MajGenl.Meade]

Bringing a baseless lawsuit (or prolonging it by a baseless dissent) is illegal, and an AG, as the chief legal officer, should not act in an illegal way

[Lord Jim]

But that's not the issue here...

Isn't it? If the suit is doomed to failure in the AG's mind I think it is.

No it's not, the AG is not being asked to bring any lawsuit...

He's just being asked to to do exactly what the statute requires of him, and defend the law against lawsuits brought against the law...

In this particular case, I believe that the ACLU and some LGBT activist groups have already filed one...

[Big RR]

Yes, and if he responds with a defense he believes is baseless and doomed to failure, he is wasting everyone's time, including the court's. And that is not permitted under the law. If there were even a colorable defense of the law, this would not apply, but IMHO that's the legal judgment I believe and AG has to provide.

Meade--I got the others (although I fail to see the relevancy to the issues I raised), but what is the fish? Oh, sorry, I just got it--a red herring, tee hee!

[MajGenl.Meade]

Why do you assume "baseless and doomed to failure"?

Scarlet fish!

[Big RR]

I don't have to; I presume the AG has. Why do you assume he has not properly analyzed the case and made a proper decision using his legal judgment?

[BoSoxGal]

Everything Big RR said:

On a smaller scale, District Attorneys and County Attorneys do this ALL THE TIME. It is not about politics, it's about the lawyer, duly elected by the people, representing their interests and making decisions regarding judicious use of very limited resources to handle the peoples' work in the court system.

County commissions and city councils and Governors are all the time hiring private counsel to handle cases the AG/DA/CA/City Attorney won't defend because she has assessed the case and acted according to her sworn duty in determining that a) the limited resources of her office and/or b) the interests of justice (this is the critical analysis encouraged by the ABA special rules and by much SCOTUS caselaw) aren't well served by defending/pursuing it.

[MajGenl.Meade]

We must be talking past each other.

You keep bringing up the AG (not Cruz BTW) acting illegally - but that has nothing whatsoever to do with the NC AG's action in this case in 2007. It is THIS case in 2007 that is the topic.

Are you just bringing up some new point (nothing to do with the case being discussed) and making a general observation that AG's mustn't be naughty? If so, well done - you've stated the obvious - though no one knows why....

[Big RR]

Meade--OK, but it is not just me bringing it up--this thread has run afar from a simple discussion of Cruz and the sex toys ban case; people have talked of the attorney general (which Cruz was not, he was the solicitor general) and Jim even cited NC law. If you want to limit the discussion to the actions of Cruz, I maintain he had two decisions he had to make: 1. whether the case was one which could be legally defended (and I think he dropped the ball in this case, FWIW), and secondly, he had a duty to decide whether he wanted to defend the case and associate himself with it. Just like the lawyers who wrote the opinions justifying waterboarding and worse for W, (while I'm sure that some attorneys might disagree) I do not think he should have pursued that case unless he personally agreed with it--but then given a lot of his rhetoric, I'm pretty sure he did. Trying to hide behind the "I just did my job" justification does not wash IMHO.

[MajGenl.Meade]

"I just did my job" is something you've tossed in. It doesn't appear in other posts. If you mean LJ, he's pointing out that AG of North Carolina is not there to judge the constitutionality or otherwise of laws passed by the legislature after they have been passed. Presumably he weighed in with his opinion before the governor signed the bill.

I expect that the AG and Cruz both thought that it should be defended. So you disagree that they should have done so - in your words "FWIW".

(It's quite possible that some people thought the AG was Cruz and missed the SG part).

[Big RR]

Well, to avoid beating a dead horse, thanks.

[rubato]

Cruz showed crappy judgement in defending a patently stupid law and did so only to pander to the sexual anxiety of the least intelligent members of the religious right. Exactly the calculation he has made every time any issue comes up.

Defending that law was an act of cynicism and cowardice.


yrs,
rubato

[Joe Guy]

Although I believe it's very likely Cruz was/is for banning dildos (not realizing that he himself is one), he was a member of a team, and to blame him for participating in the defense of the anti-dildo law is unfair. It's doing the same thing that anti-Obama people do all the time. They look for anything that could remotely be linked to him and blame it on him.

Which is not to say that I like Cruz. In fact, I'd like to kill him (just kidding, little FBI men in my computer and under my bed).

Having said all that, I agree with Big RR.

The legal definition of Interest as in 'the state has an interest in' is: "Ownership of, or other right in, property. Legitimate concern with the outcome of a case or controversy, because of a likelihood that the outcome will affect one's property rights or other rights or privileges."

Wouldn't that mean that an Attorney General would be allowed to say there is no legitimate concern for their office to get involved in an issue?