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Sunday, March 16, 2014

Courts - Is it the Kentucky AG's duty to defend every law, or does he have discretion?

On March 4th The Kentucky Attorney General announced that he would not appeal the federal district court opinion (currently on hold) requiring the State of Kentucky to recognize marriages of Kentucky same-sex couples performed outside Kentucky.

Later that day the Kentucky governor announced that outside counsel would be hired to conduct the appeal.

On March 12th the Lexington Herald-Leader had a story headed "Bill would let top lawmakers intervene in court cases when AG declines to defend Kentucky law."

Today Joseph Gerth of the LCJ has a column headed "Attorney General duty didn't require gay marriage appeal." Some quotes:

You couldn’t turn on social media or listen to talk radio in the last two weeks without folks wringing their hands and expressing outrage about the fact that Attorney General Jack Conway had failed to do his job as the state’s laws require him to do. * * *

Conway and all other officials — including every lawyer in the state, every local city council member and county magistrate — must swear in that oath to defend the U.S. Constitution and the state constitution.

The state constitution, where the oath is found, however, doesn’t say what actions the attorney general should take in the defense of the state and federal constitutions, but another section of the constitution says his specific duties are to be “prescribed by law.”

That means you have to hit the statute books — which is where others have made their cases.

Some of those who disagree with Conway’s decision argue that he was required to appeal the ruling as a matter of law. The logical extension of that argument is that Conway must appeal every adverse ruling in every case all the way to the U.S. Supreme Court if he keeps losing along the way. * * *

So what is the attorney general’s job? * * *

According to the law, he has to “attend to” litigation against the state but it doesn’t define what that means. A 1974 ruling by the Kentucky Supreme Court, then the highest court in the state, said that didn’t mean he had to defend the laws.

In fact, the ruling allowed the attorney general to file suit to block a law he believed to be unconstitutional and that opposing a law in defense of the constitution should not be considered “a breach of the Attorney General’s duty to represent the Commonwealth.”

And that didn’t even deal with whether or not the attorney general had to appeal losses, it deals with whether he has to defend laws in the first place.

But what’s really important here is part of the law titled “Appeals.”

“The Attorney General may prosecute an appeal, without security, in any case from which an appeal will lie whenever, in his judgment, the interest of the Commonwealth demands it,” it says.

That’s pretty simple. The words “may prosecute” and “in his judgment” gives him discretion as to whether to pursue an appeal.

That provision allows the attorney general to appeal the cases he thinks he can win and to bow out on those he thinks he will lose. It also allows him to save the state money.

Plaintiffs in the gay marriage case have already asked Heyburn to award them about $70,000 in lawyer fees. It’s likely that after Gov. Steve Beshear’s appeal of Heyburn’s decision, they’ll ask for even more.

It’s clear Conway had no statutory obligation to file an appeal.

What’s also clear is that if folks have a problem with Conway’s actions in the case, it’s not about whether he did his job. Their problem is with how he did it.

ILB: Similarly, Indiana's AG exercised discretion in his decision in September of 2012 not to further appeal federal court rulings against the constitutionality of an Indiana immigration bill.

Posted by Marcia Oddi on March 16, 2014 04:59 PM
Posted to Courts in general