Bacon's Rebellion

Democracy Thrives in Sunlight

The Start of De-Coochinization

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Peter Galuszka
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Mark-HerringBy Peter Galuszka

Mark R. Herring, Virginia’s new attorney general, is working quickly to disassemble much of what his predecessor, Republican Ken Cuccinelli II, put in place.

Herring (D) dismissed two law firms hired by Cuccinelli to represent the office for former Gov. Robert F. McDonnell and his staff in investigations connected to $165,000 in gifts and loans McDonnell accepted from a businessman.

Cuccinelli had hired the firms, which have been paid $785,000 in public money, because he had a conflict of interest in representing McDonnell. Normally, the attorney general would defend the governor’s office.

Herring also seems to be shying away from aggressively defending laws relating to conservative issues such as laws related to abortion clinics, redistricting and gay marriage.

Herring, who beat Republican Mark Obenshain in a squeaker of an election in November, has not said precisely that he would or would not defend such laws, but some Republicans are taking no chances. Del. C. Todd Gilbert (R-Shenandoah) has proposed a bill that would give legislators legal standing to represent the state if the attorney general declines.

A Herring spokesperson told The Post that “the constitution of Virginia provides for a duly elected attorney general to do this very job.” During the campaign, Herring said he is not sure he would defend the abortion clinic regulations against a court challenge.  He has also declined to say whether he would defend the ban on gay marriage in Virginia’s constitution.

Interesting how the shoe is on the other foot. When Cuccinelli was the state’s chief legal officer, he charged ahead with a politicized legal agenda that included cracking down on abortion clinics and harassing a former University of Virginia scientist who researched the relationship between human activity and climate change.

Herring’s firm approach is an interesting riff on how the style of Terry McAuliffe, the new Democratic governor, is emerging.

At first, McAuliffe seemed to be pushing bipartisanship as a moderate, pro-business chief executive. Lately, he’s become bolder about a liberal cause dear to his heart: expanding Medicaid coverage to the state’s poor.

McAuliffe has already upstaged General Assembly Republicans on another issue – toughening Virginia’s lax ethics laws for state employees though an executive order.

It will be fascinating to see how his and Herring’s styles emerge.

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21 responses to “The Start of De-Coochinization”

  1. TMT Avatar
    TMT

    A state attorney general has an obligation to defend the laws of the state. If Herring picks and choses, he’s twisted the office politically as much as Cuccinelli. An attorney does not need to believe in his/her client’s case, but needs to give the client the best possible representation. If Herring doesn’t want to do this, he should consider resigning. The Attorney General does not make the laws. The General Assembly does.

    Hopefully, Herring intends to do his job, and Peter’s imagination has taken control.

  2. DJRippert Avatar
    DJRippert

    TMT is quite right. In secular terms, the Constitution is the highest law of the Commonwealth of Virginia. If Herring can’t uphold his oath of office then he should resign.

    This is yet another instance where recall votes would be useful in compelling elected officials to do the job they were elected to do.

    The analogy with Ken Cuccinelli is a stretch. Cuccinelli can (and did) overstep his boundaries as Attorney General in my opinion. However, that overstepping resulted in court cases heard by judges. In almost every case Cuccinelli’s over-stepping was thwarted by the judiciary. Herring proposes to ignore the laws by failing to enforce them and presumably prohibiting anybody else in his office from doing so. As far as I know, this failure to enforce would give Herring dictatorial power to effectively veto the decisions of the democratically elected General Assembly. This would be a clear violation of both the Virginia Constitution and the oath of office he took.

    Watching the poor behavior of Barack Obama has been instructive. It seems that Deomcrats have begun to believe that it is acceptable to bypass the Constitution and their oaths of office. Nothing could be further from the truth.

  3. Peter Galuszka Avatar
    Peter Galuszka

    TMT,
    What’s so wrong with my imagination?

  4. salz Avatar
    salz

    McDonnell was indicted today. Hopefully, Vrginia won’t be picking up his legal tab any longer. Three quarters of a million already is amazing.

  5. larryg Avatar
    larryg

    re: ” In almost every case Cuccinelli’s over-stepping was thwarted by the judiciary”

    and this is better than not enforcing?

    Cuccinelli ABUSED the office .. using it as a partisan cudgel…

    isn’t it interesting that after 4 years of Cuccinelli running amok – we’re ready to condemn Herring for his alleged sins in just a few days.

    this pretty much describes the state of partisan politics these days.

    and in a word – it sucks. Can we give Herring a few days before he’s said to be worse than Cuccinelli’s 4 years?

    jesus h kkeeeerissst !!!

  6. TMT Avatar
    TMT

    Absolutely. Lots of attorneys general have brought and won or lost cases. But they have a constitutional duty to defend the laws of their state. They must make the best possible argument to defend a statute duly adopted by the state legislature and signed by the governor. If Herring doesn’t do this, absent a conflict of interest, he is failing in his constitutional duty and that as a member of the bar. An attorney general who decides which laws to defend is setting up himself/herself as above the law; above the legislature and above the people. I’m trusting Herring will be faithful to his duties.

  7. larryg Avatar
    larryg

    Wait! Herring has hardly stepped into the office and just like with McAuliffe – you are presuming bad faith.

    That’s pretty bad when you consider the Gov and AG who, after 4 years of clear history have just exited – one of them indicted and the other still trying to sue the Federal Govt.

    From the get go, from the first day in office – McAuiffe and Herring are going to be attacked?

    really?

  8. TMT Avatar
    TMT

    Larry, I was reacting to this “During the campaign, Herring said he is not sure he would defend the abortion clinic regulations against a court challenge. He has also declined to say whether he would defend the ban on gay marriage in Virginia’s constitution.” Statements such as these are worthy of question.

    Lawyers regularly make arguments in support of positions that they may not like personally. Ditto for clients they might not like.

    Here are the statutory duties of the AG. § 2.2-507. Legal service in civil matters.

    “A. All legal service in civil matters for the Commonwealth, the Governor, and every state department, institution, division, commission, board, bureau, agency, entity, official, court, or judge, including the conduct of all civil litigation in which any of them are interested, shall be rendered and performed by the Attorney General, except as provided in this chapter and except for any litigation concerning a justice or judge initiated by the Judicial Inquiry and Review Commission. …

    There is nothing there about picking and choosing. Herring is the one who talked about not defending state law. It’s not me.

  9. larryg Avatar
    larryg

    there IS discretion on the part of the AG .. If I recall correctly there were a number of questionable “discretion” issues with the prior AG on matters of discretion and no complaints…

  10. TMT Avatar
    TMT

    There is a difference between exercising thoughtful discretion based on the facts and dereliction of duty. If someone files a challenge to a state statute or regulation, the Attorney General needs to be involved in the defense of such statute or regulation. Do you really want an AG who decides what he wants the law to be? I expect Herring to do his duty. I imagine most other citizens do too.

  11. TMT Avatar
    TMT

    There is a difference between exercising thoughtful discretion based on the facts and dereliction of duty. If someone files a challenge to a state statute or regulation, the Attorney General needs to be involved in the defense of such statute or regulation. Do you really want an AG who decides what he wants the law to be? I expect Herring to do his duty. I imagine most other citizens do too.

  12. TMT Avatar
    TMT

    There is a difference between exercising thoughtful discretion based on the facts and dereliction of duty. If someone files a challenge to a state statute or regulation, the Attorney General needs to be involved in the defense of such statute or regulation. Do you really want an AG who decides what he wants the law to be? I expect Herring to do his duty. I imagine most other citizens do too.

  13. larryg Avatar
    larryg

    “thoughtful discretion”?? is that something the Cooch did?

  14. TMT Avatar
    TMT

    The bottom line remains: Do you want the state attorney general’s office defending state laws and regulations when challenged? Or do you want the incumbent (no matter who he/she is and his/her politics) picking and choosing which ones will be defended and which ones will not? It’s not more complicated than this.

    Legislatures sometimes adopt stupid laws and some are even unconstitutional. But it is not the role of the Attorney General to decide what laws are stupid and what laws are unconstitutional. The AG can write opinions in accordance with the statutes. But voters decided which laws are stupid and courts decide which are constitutional.

  15. larryg Avatar
    larryg

    I’m willing to give Herring a chance to define his approach… I think he’s entitled to that rather than people waiting in the wings to pounce on him.

    and I’m pretty sure he’s going to do a more credible job than the Couch did.

    re: laws

    the AG is allowed not only give opinions but without constraints …

    what constraints did you have in mind? The AG does have the right to determine if he thinks a law is Constitutional or not.

    what controls are on him in this area?

  16. TMT Avatar
    TMT

    I have no trouble with an AG opining, pursuant to state law, that he believes a law is unconstitutional. That’s the purpose of AG opinions. Herring has so stated informally about the ban on gay marriage. But I believe there must be a way for the Commonwealth to defend its statutes, even if I think they are stupid, or we see one person usurping the General Assembly and the Governor. Otherwise, we have a dictator breaking the fundamental separation of powers.

  17. TMT Avatar
    TMT

    Here is the statute governing AG opinions.

    § 2.2-505. Official opinions of Attorney General.

    A. The Attorney General shall give his advice and render official advisory opinions in writing only when requested in writing so to do by one of the following: the Governor; a member of the General Assembly; a judge of a court of record or a judge of a court not of record; the State Corporation Commission; an attorney for the Commonwealth; a county, city or town attorney in those localities in which such office has been created; a clerk of a court of record; a city or county sheriff; a city or county treasurer or similar officer; a commissioner of the revenue or similar officer; a chairman or secretary of an electoral board; or the head of a state department, division, bureau, institution or board.

    B. Except in cases where an opinion is requested by the Governor or a member of the General Assembly, the Attorney General shall have no authority to render an official opinion unless the question dealt with is directly related to the discharge of the duties of the official requesting the opinion. Any opinion request to the Attorney General by an attorney for the Commonwealth or county, city or town attorney shall itself be in the form of an opinion embodying a precise statement of all facts together with such attorney’s legal conclusions.

  18. larryg Avatar
    larryg

    how hard is it to get a request for an opinion from the GA?

    why are you reading the fine print? DId you read it when the Cooch was AG?

    🙂

  19. TMT Avatar
    TMT

    I’ve paid attention to state AG opinions for years as part of my law practice. The authorization laws are generally similar throughout the states. They are published and should be followed by successors similar to how judges follow judicial precedents.

    I would think McAuliffe could request an AG’s opinion on gay marriage. Herring would need to square it with any existing opinions or distinguish it. While I could vote for a gay marriage statute if properly written, someone needs to defend the state constitution and statutes on the books. Either that or there is no case or controversy to be decided. The US Constitution prohibits advisory opinions in federal court. Some states do, while others don’t. The logic is that, for a court case to be decided, there must be adversaries so that both sides are fully presented and argued. The Constitution rejects sham litigation and rightfully so. So for Herring to take the position the Virginia constitution and statues are unconstitutional, there must be a party on the other side with the opposite interest for a matter to be litigated.

    From a policy perspective, I see a difference between religious marriage and civil marriage such that it would be reasonable to change the definition to be gender neutral. But if you open the definition of a civil marriage vis a vis gender, I think you also need to open it vis a vis number. Multiple party marriage has deep roots in human history.

  20. larryg Avatar
    larryg

    I think there is discretion on the part of the AG as when he is asked, he can and does advise if he thinks something passes legal and/or Constitutional muster. It would seem the “asking” part is perfunctory .. if he needs it, anyhow.

    there are remedies both legislative and judicial if someone wants a more definitive answer.

    From what I understand, Herring is saying that he thinks our current Va law has been rendered invalid by recent court decisions… in a similar way many years ago that in the Loving case, Va law was rendered invalid – by a Federal court in 1967

    My impression is that the SCOTUS rendered a decision without regard to religion .. but religious beliefs do no get enshrined in law per the Constitution.. I would think.. but I’m no lawyer for sure.

    But policy wise – wasn’t one of the founding principles of the Country freedom of religion – freedom to not have any particular religion or religious beliefs imposed on those who did not believe them, i.e. Freedom FROM religion?

    I think Herring is right on the money myself despite reading in Conservative blogs calls for his impeachment!

    1. TMT Avatar
      TMT

      I have a big problem with newly discovered constitutional rights. Interpretation can change, but it needs a helluva good explanation and not that public opinion has changed. A changed public opinion should result in the legislature changing the law. The courts have long rejected the idea that a state ban on gay marriage or a ban on polygamous marriage is unconstitutional. How do we get from there to here without “penumbras and emanations” which is how the late Justice Douglas found new rights.

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