AG Cooper, voter suppression, marital rights and his powers generally

I am posting this because nothing said so far relies on, or indicates any knowledge or understanding of, the law that is applicable. I will try, too briefly due to time and space limitations ufortunately, to set that record straight. I do so from my perspective as a former tenured professor at the UNC law school and the former Chief Administrative Law Judge of the state, as well as a short stint as a Special Deputy Attorney General. For the sake of full disclosure I will also state that Mr. Spaulding was a student at the law school when I was teaching there and I have followed his career. I like him as a person and I respect his professional ability. I believe, however, that I am able to maintain the impartiality of a teacher and a judge. If others who write on this blog believe otherwise, that is their prerogative.

One previous post came close to the crux of the issue. The Attorney General takes an oath to support the US Constitution, and the NC Constitution only so long as it is not inconsistent with the US Constitution. General Statute 11-7. The point is that the AG cannot and should not defend a statute that he believes violates the US Constitution and especially should not defend one that is similar, or virtually identical, to one from another state that the federal courts have held violates the US Constitution.

Moreover, GS 114-1.1 was amended in 1985 to add that the AG has had and continues to have the powers of the office that existed at common law. I was consulted by the leaders of the General Assembly about this amendment when it was proposed and it was clear that the intent of this provision was to affirm the proposition that the AG decides the state’s position on all legal questions and can choose to represent the state or not in a case, decide the state’s legal position when two agencies disagree on what that position should be, etc. This section has not been interpreted by the courts in NC (primarily, one may speculate, because no AG has never tried to exercise it) but similar language or the basic proposition or both have been discussed in a number of cases in other states and in quite a few law review articles. One of the better reasoned cases says (and this is a direct quote):

“The office of attorney general has existed from an early period both in England and in this country, and is vested by the common law with a great variety of duties in the administration of the government. The duties are so numerous and varied that it has not been the policy of the Legislatures of the states of this country to attempt specifically to enumerate them. Where the question has come up for consideration, it is generally held that the office is clothed, in addition to the duties expressly defined by statute, with all the powers pertaining thereto at common law. From this it follows that, as the chief law officer of the state, he may, in the absence of some express legislative restriction to the contrary, exercise all such power and authority as public interests may from time to time require. He may institute, conduct, and maintain all such suits and proceedings as he deems necessary for the enforcement of the law of the state, the preservation of order, and the protection of public rights.” Commonwealth v. Kozlowski, 131 N.E. 207, 212 (Mass. 1912).

And it might also be noted that GS 114-2(8)(a) empowers the AG to intervene on behalf of the public or to institute proceedings on behalf of the public when appropriate – which more or less codifies the last sentence of the Kozlowsk opinion.

The current AG has, as have all NC AGs in my memory, taken the position that the highest duty is to defend the acts of the executive and legislative branches regardless of the AG's professional opinion of the validity of the act or enactment. That is simply not true. It is a position that keeps the AG on good terms with other elected officials and with appointed officials but it ignores the common law power of the AG to be the final authority on which cases to litigate and which ones not to litigate – in other words to have the power to set the state’s position on legal questions. This is particularly true in a state, like NC, where the AG is a separately elected constitutional official and even more particularly true where the legislature has, as in GS 147-1.1, specifically said that the AG “had and has” all of the common law powers of the office. And where, as in NC it might be noted, the executive or legislative branches or both can retain counsel when they do not agree with the opinion of the AG

MOST IMPORTANAT: This AG relies, as have his predecessors, on the proposition that the governor, the legislature, the agencies, etc. are his clients and he has to represent them no matter what. That is not true. The people of North Carolina are his clients and he should be representing them if the governor, the legislature, the agencies, et al. are acting against the interests of the people.

But accepting, arguendo, that the AG has to defend the acts and enactments of the officers and agencies-- in other words that the state as an entity is his client, the Code of Professional Responsibility gives him a different obigation. Rule 1.2(a)(3) states that a lawyer may exercise professional judgment to waive or fail to assert a right or position of his client. So the AG has the permission and the directive of the rules of the legal profession to use his conscience and his professional judgment.

Robert A. Melott

Comments

Will be an interesting gubernatorial battle….war

"So the AG has the permission and the directive of the rules of the legal profession to use his conscience and his professional judgment."

Of course, this is what happens when you have a Governor's mansion and legislative body busting at the seams with proselytes and ideology posing as public service representation………………………………………..

This matches my own views

as a guy in the nickle seats.

Regardless of the dynamics of the governor's race, and whatever any of us thinks personally, the issue is an important one.

I agree

on so many levels. This is nothing more than a ruse to tamp down Cooper since the moment there was any indication that he might run for governor. And while I appreciate the professor's post, I would suggest that it's hard to digest for the average voter in North Carolina. Academically, the post is great but he also hits on an (or the most) important aspect; the AG is an elected position. BS about impeaching Cooper is just that. Carr Ipock is going to give Sanderson a run and the Ipock name is well known in New Bern and surrounding areas. And just like Cooper, who's name is well known and assuming people have been paying attention; the AG's office has saved alot of North Carolinians' butts monetarily from fraud or at a minimum, acted as a guard dog.

Academia and legalize are great, but reality is where the rubber hits the road. My interest in Nolan, I believe, is appropriate and I'm interested in others' views. Everytime I intend on posting something serious, I think of the NCGA and break out in uncontrollable…….. We'll see if the Republican gravy nut train has left the station in the next election. One can only hope.

The eventual ruling

The rubber will hit the road when the Supreme Court rules on the marriage issue. Indications are that it might be as soon as summer 2015, over a year before Cooper would be running for governor.

The Republicans are betting that either the Supremes will toss gay marriage back to the states or that, if they do legalize gay marriage, that the average voter will be up in arms and toting around pitchforks and torches. Win or lose, the Republicans figure they can use gay marriage as an issue to turn out the base evangelicals.

Cooper's probably looking at the trend in the poll numbers on the issue and thinking that the average voter just won't give a damn about it in 2016. He's probably also thinking that there will be some corruption scandals that will pop up with the McCrory administration and members of the legislature by 2016, pushing the gay marriage issue out of the spotlight.

Cooper - Judgement

Cooper is on sound ground in my view, I agree with Ram in his layout of what Cooper's duties are.

But, how has he done as a tribune of the people?

As an advocate for people of NC, in the past decade he has flubbed terribly - specifically in not tackling the foreclosure mess and its impact on this state. During the flap around in the foreclosure crap, Roy Cooper studiously ignored the massive illegal fraudulent document signing, which was brought to light by the Guilford County Register of Deeds, Jeff Thigpen. I wrote and wrote and wrote, never to get a response from Cooper or his many assistants, who were doing God know what. My premise is that Cooper was in cohoots with the other AGs when he agreed to a pittance in the national 49 state AGs pact with Justice Dpt to close down the investigations into mortgage fraud - which was driven by pressure from the White House to get it out of the way for the 2012 elections. Flatly, Cooper took no action when he had evidence of criminal misdeeds in front of him, available.

Which is why I have severe doubts about his ability as governor to rise above petty politics as governor, not that such is a real prerequisite, witness McCroney, "Dumpling" Perdue, Easy and predecessors.

wafranklin