What a dildo!!

[rubato]

It is the job of the AG to articulate what the state's interests are.


yrs,
rubato

[Scooter]

That looks pretty unequivocal and cut and dried to me...

It's nowhere near as unequivocal as you are reading it. First, it says "defend all actions in the Appellate Division..." and "appear for the State in any other court or tribunal". The distinction must mean something, or wouldn't be there. Whatever they mean by "defend", it applies only in cases before the Appellate Division (Supreme Court and Court of Appeals).

So if we use the bathroom bill as an example, any action would probably be filed in federal court, the case would never pass through the state's Appellate Division, so no obligation to defend, only to appear, as the case moves through the federal court system.

If the initial action is brought to a state District or Superior Court (depending on their jurisdiction), the AG would be required to "appear" on behalf of the state, but this statute does not obligate him to "defend" an action there.

Let's say the lower court finds against the state. The statute says the AG must defend actions in Appellate Division, but it doesn't say he must launch an appeal of an adverse ruling of a lower court. So once again, he has an out.

So the statute in no way obligates the AG to defend a case in lower court when he sees no legitimate defence, nor to launch an appeal of a lower court's ruling against the state when he sees no legitimate grounds for appeal, nor to defend the state in an action in any federal court.

What if, in spite of his inability to see a legitimate defence, a lower court finds for the state, and the other party appeals. There is now an obligation to defend, and that makes sense, because the lower court ruling showed that there was a sufficiently convincing defence.

So no, the statute does not compel the AG to defend the state when there is no legitimate defence, which as others have said, would be perpetrating a fraud on the Court.

then what a state AG is in effect doing is setting himself up as an extra-constitutional veto wielding authority over the laws passed by his state legislature...

A veto authority, that unlike the veto powers typically granted constitutionally by the states to their Governors cannot be over-ridden by a the legislative branch with a super majority...

This form of defacto pseudo veto power is absolute, and unreviewable...

That would certainly be bad enough, but the abuse of power does not stop there...

Not only does a state AG who takes this action usurp the state constitutional powers of the legislature and the governor, but by assuming unto himself the power to decide on the constitutionality of legislation legally passed by the legislature and signed into law by the governor...

He also usurps the power and responsibility assigned to the judicial branch...

And again, there's no review or remedy to appeal his interpretation; his decision is final and absolute...

[/quote]If the AG does not believe that his duties extend to attempting to deceive a court with sham defenses, and the Legislature interprets his duties otherwise, it has a very effective remedy - he can be impeached. Even if the case has already been heard and lost, he really was derelict in his duty, that gives the new AG the opportunity to appeal on the grounds of inadequate counsel and request a new trial.

You appear to be assuming that the refusal to provide a defence for the state will leave the judge nothing to decide, and no option except to rule against the state. Judges don't simply listen to each party's counsel and pick the one he/she likes the best. They use those arguments to do their own analysis - determining what questions need to be answered, foreseeing the impact of the legislation, applying the appropriate constitutional tests, reviewing precedents, etc. So no, the AG would not be deciding on constitutionality; he would be declaring himself unable to present any defense of the law's constitutionality. Do you recall the Prop 8 case? The state did not mount a defense, and the judge gave the intervenors and their witnesses every opportunity and suggestion he could to beef up their defense of the. It was twaddle, but the judge made sure that he saw it in its best possible light., and decide that for himself.

If the state in that case had instead presented a bogus defence, the judge could have been annoyed, or at least less inclined to coach the intervenors.

Seriously, how far would you take what you are suggesting? Did you notice that the NC Constitution imposes a religious test for holding public office? Denying the existence of "Almighty God" will disqualify you from appointed or elected office? It is long settled law that no state or federal government can force a profession of religious belief or lack thereof. That clause has not been enforced in decades, like in every other state that has one, because everyone knows it will be struck down. The state Constitution obligates the Governor to "enforce all laws", by failing to do so has he usurped the role of the citizenry and legislature that adopted it, and of the judiciary who have been prevented from ruling on it?

Let me be clear that for me this is not about "moral objections" or any of the other slippery slopes you included, only when there is no honest defense. You referred to a laywer's obligation to zealously defend a client; that does not permit, much less obligate, a lawyer to argue something known to be false - at a murder trial a lawyer cannot offer evidence or argue that his/her client didn't do it if he/she knows that he did.

(edited out an incomplete thought that was going to be off point anyway)

[Lord Jim]

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...

Big RR, that looks like pure repetition of what you said earlier that I have already responded to...

(I'm a little old for merry-go-rounds, and if I wanted to get on one, I could always take wes off ignore... )

And let me say again, that in this case, I think this is a silly and stupid law, that serves no useful purpose...if I had been a member of the NC state legislature I would have voted against it, and if I had been the Governor of North Carolina, I would have vetoed it....

But looking at the larger principle...

A state AG who has decided for whatever reason that his legal obligation to fulfill his responsibilities as AG conflicts with his legal obligations as an officer of the court, should absent himself from the debate...

But, as has been pointed out, there is a remedy here for dealing with a state AG who refuses to do his job, (short of going through an Impeachment process, which is a process deliberately and properly made onerous because it should not be easy to un-do a decision made by the electorate...As I mentioned earlier, the AG of NC is elected, as are most state AGs)

And that remedy would be for the Governor of that state to step in, and provide the legal defense of a law, when that state's AG refuses to do his job ...

[Scooter]

The governor should do that after he reinstates enforcement of the religious test required by the state constitution. That is, explicitly one of his job requirements, unlike the ones you are trying to invent for the AG.

[Lord Jim]

unlike the ones you are trying to invent for the AG.

I don't see where I'm engaging in any "inventing"; once again, here's the statute:

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.

That looks like pretty straight forward, "black letter" law...

A lot of the time in the construction of a legal statute, there's a fair amount of legalese weasely gobbeldygook, designed to be open to multiple interpretation, but that one is so clear and unambiguous that even a simple-minded fellow like me can understand it...

[Scooter]

yes defend all actions in the appellate division, and appear for the state in any other courts. You are seriously not seeing the duty to defend being limited to cases heard in the Appellate Division, which, for reasons I have laid out, will only occur in limited circumstances, and almost certainly not when this law gets taken to court? Why the distinction between the Appellate Division and any other court, if he is required to defend every case in every court? Reading the two parts of that sentence as if they mean the same thing would require ignoring some fundamental principles of legal interpretation.

[MajGenl.Meade]

The law was upheld at the trial court level, and was found unconstitutional in a 2-1 decision at the appellate level. So, it was a reasonable but ultimately non-compelling defense

Evidently the AG "appeared FOR" the state at trial court level and then "defended" an action at the appellate level.

What the freaking hell is the point of all this hair-splitting?

[Gob]

It's what we're best at.

[Long Run]

It's what we're best at.

I thought that was bouncing.

[Scooter]