With a rising number of divisive laws being challenged in courts across the country — including those addressing same-sex marriage, immigration and voting rights – some attorneys general are refusing to defend their states, agreeing that such laws are unconstitutional.
Pennsylvania Attorney General Kathleen Kane announced in July that she wouldn’t defend that state’s same sex marriage ban in a pending federal lawsuit.
Illinois’s Lisa Madigan did the same last June, around the same time that Indiana Attorney General Greg Zoeller announced that he’d no longer defend portions of that state’s immigration law, calling them unconstitutional.
That hasn’t happened in North Carolina, though Attorney General Roy Cooper has publicly expressed his views on the viability of certain state laws.
He openly opposed provisions of the gun bill eliminating permits for handguns, and did the same with respect to provisions of the abortion bill. In late July, Cooper also sent a letter to Gov. Pat McCrory, saying that the sweeping voting changes enacted in House Bill 589 were unnecessary, expensive, burdensome and likely to lead to costly litigation. Cooper asked the governor to veto the bill.
Cooper has yet to decline to defend the state in any case, though. But his comments were enough for Republicans in the General Assembly to pass another midnight-hour bill giving their legislative leaders the ostensible right to jump into lawsuits and defend legislation they’ve passed, seemingly without restriction.
“With all these public political statements, we want to have an option in case [Cooper] doesn’t vigorously defend the statute and the laws of North Carolina when they are taken to court,” Rep. Paul (“Skip”) Stam told the Winston-Salem Journal after the bill’s passage.
But lawmakers should think long and hard about when, where and if they try to join lawsuits challenging state laws, particularly if the attorney general is already defending the state, experts say.
“The idea of allowing the legislature to just go running into court is a guaranteed way to result in lots of flailing-around lawsuits, and is just using the courthouse to continue the legislative session, which to my way of thinking is a very bad idea,” said former Maine Attorney General James Tierney, who now runs the National State Attorneys General Program at Columbia Law School.
Silencing the Attorney General
The division of labor in North Carolina is clear. The General Assembly makes the laws, and the governor, through the elected attorney general, enforces those laws.
That’s done most visibly by the attorney general appearing in court on behalf of the state, whether to defend a law being challenged or to bring violators of state law to justice.
But the attorney general is, above all else, obliged to uphold the constitution, Tierney said, and to that end should scrutinize – and possibly not defend — laws that might be popular yet flawed.
“The simple truth is that attorney general refusal to defend happens all the time,” Tierney said in an earlier Washington Post article. “Legislatures are comprised in most states by non-lawyers trying to do the right thing, but they do not understand the complexity of constitutional limits. They are advised, but often plunge ahead — both liberals and conservatives — and make constitutional mistakes. It then falls to the attorney general to clean this mess up.”
Duty aside, the possibility of that happening in North Carolina apparently unhinged GOP lawmakers at the end of the long session and led to the midnight-hour, party-line passage of Senate Bill 473, which purports to give the Senate President Pro Tem and the Speaker of the House standing, on behalf of the General Assembly, to intervene in lawsuits challenging state laws.
That bill started out in March as one proposed by Senators Bob Rucho and Harry Brown to reduce healthcare costs and provide greater transparency in the pricing of medical services.
In true fashion, though, it reappeared on the eve of adjournment with the health care provisions gutted and the standing provisions inserted. Given the late hour, little debate was held on the House floor before the new bill passed and sent along to the Senate, where it cleared along party lines the next morning.
Rep. Stam would later say in the Locke Foundation’s Carolina Journal Online that he and his GOP colleagues might use the bill to step into a lawsuit if they were unhappy with the attorney general’s handling of the case, hinting that its provisions might be used more than just when the attorney general declines to defend.
“You may want to have the [General] Assembly have the option of presenting the case in a more positive light,” he said.
(When called to discuss the bill, Stam said that “NC Policy Watch is not a real news organization” and that he “doesn’t talk to” us.)
But on the House floor, Stam was clear on the legislative intent of the bill when answering Rep. Rick Glazier’s questions.
After some back and forth between the two, Glazier asked Stam to confirm his understanding of what the bill did.
“Do you agree,” Glazier asked, “that this bill is not intended to replace the attorney general in any action, and that the attorney general is still the primary defender of the state?”
“And do you agree that the Speaker and the President Pro Tem, though given the authority to intervene on behalf of the General Assembly, can do so only when a court allows them to do so [under court rules covering intervention]?”
“I agree,” Stam said.
More questions than answers
If, when and how often lawmakers seek to intervene in any lawsuits challenging laws passed this session remains to be seen.
The attorney general, for his part, has said that he has every intention of continuing to defend the state in such lawsuits.
What is known, though, is that those efforts to intervene will at a minimum invite more unnecessary litigation and could lead to the attorney general and lawmakers taking conflicting positions.
“They’ll still have to go through the process of asking the court to allow them to intervene, and in federal court, proving that they have standing,” said Jeanette Doran, executive director of the North Carolina Institute for Constitutional Law, which released a memo discussing some of the legal issues surrounding Senate Bill 473.
In that memo, Doran finds some piecemeal support for the bill and points to a 1984 New Jersey case, May v. Cooperman, as an example of how intervention by lawmakers could play out. There, the Court granted intervention in a challenge to a classroom “moment of silence” law, largely because the state attorney general had in fact declined to defend that law, saying it was unconstitutional.
May serves as a cautionary tale, though, since the court there ultimately agreed with the attorney general on constitutionality and ordered the intervening lawmakers to pay the challenging parties’ attorney’s fees.
Attorney’s fees are just one of several practical considerations that may likely dissuade lawmakers from using intervention often, Doran said.
“I think they’ve got bigger issues to worry about,” she said, “and I think there would be a lot of concern about unnecessarily intervening from a policy perspective and also from a financial resources perspective, because there certainly are going to be people saying ‘why are we paying these lawyers, when we’ve got a whole department of justice.’”
Right now, though, the governor has an even bigger issue to ponder as he considers signing Senate Bill 473 and allowing state legislatures to attempt to rein in the attorney general.
Will he too seek to silence the attorney general?
“The attorney general is supposed to uphold the constitution – that’s his job,” Jim Tierney said.
“And you want your attorney general telling the truth. If the attorney general in his view says ‘you’ve got some real constitutional issues here,’ I would think any governor would want to know that before he signs a bill.”
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