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AG Roy Cooper Refuses to Defend State in HB2

I work in a state court system and a large number of cases on the civil side are discrimination cases in the employment context (I would say at least a quarter of cases - I'm sure the actual numbers are available somewhere both here and in NC). I really can't imagine the caseloads the federal courts would have if even half of the cases filed here got filed in federal court in addition to their normal caseload.
 
JimBoeheim said:
This was exactly what I was thinking. I hate HB2 and I like Roy Cooper, but I think he has overplayed his hand a bit on this one. The General Assembly would never allow him to defend this, it is the exact scenario that they passed the law to allow them to hire their own counsel for. I think the law is potentially unconstitutional and/or in violation of Title IX, but it is going to take a long time for that to be finally settled. By saying this law is indefensibly unconstitutional he has crawled a long way out on this limb and will look foolish if the district court finds otherwise regardless of the outcome of the inevitable appeals that will ultimately decide the case.
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I think he figured the backlash would be worse from those on the left who don't understand it's his job to defend laws even if he doesn't personally agree with them than those in the center-right who will dock him for not doing his job.

It's probably the safer play politically to not be associated at all with the stink of this bill. Plus the meat of this case likely won't be argued til after he's gone anyway.

I wish he had said "I'm personally repulsed by this bill and believe it is immoral, unconstitutional, and bad for NC. However, unlike republicans, I put my duties above partisan politics and for that reason will argue every available defense for this law while I'm AG. When I become governor my first order of business will be restoring basic rights for all NC citizens."

Then wait to weeks for the republicans to hire outside counsel and blast them for wasting millions of taxpayer dollars defending a discriminatory law.


But I get why he went the way he did.
 
Except there's SCOTUS case law that's almost on point.
 
wfumike02 said:
Except there's SCOTUS case law that's almost on point.
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almost being the operative word. Look I definitely think the law is unconstitutional, but I also think there are arguments to be made that SCOTUS has not addressed. Bad arguments, but arguments nonetheless.

This isn't the same situation as Cooper declining to go argue the exact same case to the 4th circuit after they had just ruled on an identical case (Virginia's law) and the exact issue was on appeal to the Supreme Court.
 
Sorry for the the delay, I've been otherwise indisposed. But thanks to TWMD for brining back my old posts to show that I am Nostrafuckingdamus when it comes to this assclown. It was obvious what Cooper would do in this situation, because Roy Cooper only looks out for Roy Cooper's political image, nothing else (and certainly not his actual job duties). He has been pulling this bullshit for years.

Roy Cooper is not the Governor. Roy Cooper is not the collective legislature. Roy Cooper is not an Appeals Court Judge or the panel of state Supreme Court Judges. Roy Cooper isn't even a fucking small claims court judge. Yet somehow, again, Roy Cooper believes that his opinion is more important than any of theirs, and the entire legislative process in general. Roy Cooper does not get to determine whether or not a state law is constitutional after it has been enacted and before it has been examined by the appropriate judges. Fuck Roy Cooper. If that sorry sack of dogshit can't properly do his job then he needs to resign or, preferably, walk into oncoming traffic.
 
Roy Cooper wants so bad to use the women's shitter, tell you what I'll do to help him out. I'll go to his fancy house, ring the doorbell, then when he answers I'll reach down under his dress and rip off his dick and balls with my bare hands and stuff em in my mouth right in front of him. Gobble them right down. Then I'll personally drive him over to the county courthouse and register him for a change of gender on his birth certificate. Once it's filed, I'll then drive him home, light a candle, put on an easy listening record, and stick my pecker right in that brand new, certified legit pussy between his legs. When I'm done with him, he'll finally be able to truly call himself a girl and use their bathroom, just like he wants.
 
Well the AG is always going to determine if they believe the law that they are tasked to defend is constitutional or not - the federal constitution supersedes state law and the state constitution. We're in agreement that he should resign though, mainly to get away from the stench that is the GOP and McCrory - get out of that now Roy and save yourself.
 
Wakeforest22890 said:
Well the AG is always going to determine if they believe the law that they are tasked to defend is constitutional or not - the federal constitution supersedes state law and the state constitution. We're in agreement that he should resign though, mainly to get away from the stench that is the GOP and McCrory - get out of that now Roy and save yourself.
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Again, no. The AG doesn't make that determination, the Judges do. The AG's job is to defend the state's action, the same way any lawyer's job is to advocate for his client. Every lawyer at some point has to advocate for a position that he/she truly doesn't support, but that is the job; if you don't like it then go find another career. If he truly does not believe that his client has an arguable position, then it is his duty to resign and let someone else do it. But he is not the person who decides the constitutionality.
 
It's just not as clear cut as you want it to be.

http://www.nclawreview.org/2014/08/...and-the-responses-of-other-government-actors/

Article discussing the "duty to defend"

http://www.yalelawjournal.org/feature/state-attorneys-general-and-the-duty-to-defend

Yale Law Journal take on AG "duty to defend"

"Unlike state constitutions, state statutes invariably speak to the power and responsibilities of the attorneys general.109 Most state statutes provide that the attorney general is to represent (or appear on behalf of) the state or has a duty to represent it. As noted with respect to similar constitutional provisions, such language is rather equivocal because it is hard to tease out implications about when attorneys general may (or must) defend (or concede the invalidity of) state law. A handful of states have more specific directives. Two states mandate that their attorneys general defend the constitutionality of state law (Pennsylvania and Mississippi).110 Tennessee clearly empowers its attorney general to refuse to defend laws she finds unconstitutional.111 Louisiana has a suggestive but ambiguous statute. It provides that the attorney general “at his discretion, shall represent . . . the state in any action or proceeding in which the constitutionality of a state statute or of a resolution of the legislature is challenged or assailed.”112It is suggestive because one might conclude that the Louisiana Attorney General may choose, “at his discretion,” not to defend the constitutionality of state law. By statute, Nebraska compels its attorney general to challenge the constitutionality of state law whenever two preconditions are satisfied: first, she has previously opined that the law is unconstitutional, and second, a state officer refuses to enforce the law in reliance on that opinion.113 This express duty to attack is somewhat narrow because it only applies when the two preconditions are met.

Even when codified state law imposes an obligation to defend, the duty’s implications are rather uncertain and raise a host of questions. What sort of arguments must the attorney general make at trial or on appeal? Any argument, even if implausible? Only plausible arguments? Or only those arguments that actually persuade the attorney general, meaning that if there are none, she need not mount a defense even if others think there is a plausible argument? Relatedly, must she advance (plausible or persuasive) legal arguments that the state supreme court or the U.S. Supreme Court has previously rejected in another legal context? What if a supreme court has already declared a state law to be unconstitutional (or otherwise preempted)? Must the attorney general nonetheless make the same arguments again because she has a duty to defend and hope that the supreme court will change its view?

There is the separate issue of whether to appeal. In particular, must the attorney general with a duty to defend appeal unfavorable trial court judgments that strike down state law? If so, must she continue to appeal until the highest court rules?114 One might suppose that anything short of continual defense, however futile, violates the duty to defend. Yet one might also imagine that duties have implicit limits and that context matters. Though soldiers are duty-bound to defend their country, that obligation is not unyielding, for even soldiers may surrender to the enemy in certain circumstances.115 Similarly, one might suppose that the duty to defend applies only when a defense has a prospect of success in the courts."
 
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2&2 Slider To Leyritz said:
Again, no. The AG doesn't make that determination, the Judges do. The AG's job is to defend the state's action, the same way any lawyer's job is to advocate for his client. Every lawyer at some point has to advocate for a position that he/she truly doesn't support, but that is the job; if you don't like it then go find another career. If he truly does not believe that his client has an arguable position, then it is his duty to resign and let someone else do it. But he is not the person who decides the constitutionality.
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This isn't exactly true. The federal judiciary provides the definitive interpretation of the U.S. Constitution. They do this by examining fact-specific cases. However, the judiciary can't resolve every single specific set of facts. Thus, legislative and executive officials have the responsibility, and the ability, to apply the Courts' interpretation of the Constitution to specific sets of facts.

Furthermore, in NC the AG is a separate elected office. This means voters have the ability to put someone in office to serve as a check against the legislature or governor. As the state's top law enforcement officer, the AG has discretion on how to allocate resources enforcing and defending NC laws.

Roy Cooper can't simply say "I think the Equal Protection Clause protects transsexuals, therefore this law is unconstitutional." However, he can, and did, say "The Fourth Circuit just declared same-sex marriage bans unconstitutional, therefore NC's same-sex marriage ban is unconstitutional."

Now he is saying "The Supreme Court has declared that 'a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.' Therefore, this law that represents a bare desire to harm a politically unpopular group, is unconstitutional." While it's not quite as clear cut as the gay marriage case, it's within Cooper's discretion as an executive official tasked with upholding the constitution, and is certainly part of his role as an elected political official.
 
RChildress107 said:
This isn't exactly true. The federal judiciary provides the definitive interpretation of the U.S. Constitution. They do this by examining fact-specific cases. However, the judiciary can't resolve every single specific set of facts. Thus, legislative and executive officials have the responsibility, and the ability, to apply the Courts' interpretation of the Constitution to specific sets of facts.

Furthermore, in NC the AG is a separate elected office. This means voters have the ability to put someone in office to serve as a check against the legislature or governor. As the state's top law enforcement officer, the AG has discretion on how to allocate resources enforcing and defending NC laws.

Roy Cooper can't simply say "I think the Equal Protection Clause protects transsexuals, therefore this law is unconstitutional." However, he can, and did, say "The Fourth Circuit just declared same-sex marriage bans unconstitutional, therefore NC's same-sex marriage ban is unconstitutional."

Now he is saying "The Supreme Court has declared that 'a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.' Therefore, this law that represents a bare desire to harm a politically unpopular group, is unconstitutional." While it's not quite as clear cut as the gay marriage case, it's within Cooper's discretion as an executive official tasked with upholding the constitution, and is certainly part of his role as an elected political official.
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His express role is to represent the state in all legal proceedings in which it is named. That is the statutory purpose of his position. Nobody is asking him to proactively initiate a lawsuit determining the constitutional validity of the statute; the only way that his duty to appear would arise would be if someone else initiate the lawsuit, in which case his duty is to appear for the state and defend it. As of yet, no such lawsuit has been filed (to my knowledge). As such, there is absolutely, positively, no reason whatsoever for him to come out now and state his opinion on the constitutionality of the law, other than his own personal political gain in an election that is outside the scope of his current job. And for that alone, he should be fired immediately.

And the duty to uphold the constitution is a completely different matter than the statutory purpose of his position and pretty much irrelevant in this setting. Every NC lawyer takes the oath to uphold the NC Constitution, and I think every lawyer in the US takes the oath to uphold the US Constitution. That doesn't mean that their personal interpretation of gray areas of the Constitution prevent Constitutional challenges; if that were the case then arguably there would never be any Constitutional challenges unless the lawyers themselves were on board with the actual aggrieved parties, which I would bet is rarely the case.

Finally, despite the AG being a separate elected office, nowhere in the statutes does it say that the purpose of said office is to "serve as a check against the legislature or governor." That is simply not the role of that office. All of the libs railed against that County Clerk who wouldn't do her job and sign the gay marriage certificates; Cooper not doing his job in representing the state is basically the exact same thing.
 
Wakeforest22890 said:
It's just not as clear cut as you want it to be.

http://www.nclawreview.org/2014/08/...and-the-responses-of-other-government-actors/

Article discussing the "duty to defend"

http://www.yalelawjournal.org/feature/state-attorneys-general-and-the-duty-to-defend

Yale Law Journal take on AG "duty to defend"

"Unlike state constitutions, state statutes invariably speak to the power and responsibilities of the attorneys general.109 Most state statutes provide that the attorney general is to represent (or appear on behalf of) the state or has a duty to represent it. As noted with respect to similar constitutional provisions, such language is rather equivocal because it is hard to tease out implications about when attorneys general may (or must) defend (or concede the invalidity of) state law. A handful of states have more specific directives. Two states mandate that their attorneys general defend the constitutionality of state law (Pennsylvania and Mississippi).110 Tennessee clearly empowers its attorney general to refuse to defend laws she finds unconstitutional.111 Louisiana has a suggestive but ambiguous statute. It provides that the attorney general “at his discretion, shall represent . . . the state in any action or proceeding in which the constitutionality of a state statute or of a resolution of the legislature is challenged or assailed.”112It is suggestive because one might conclude that the Louisiana Attorney General may choose, “at his discretion,” not to defend the constitutionality of state law. By statute, Nebraska compels its attorney general to challenge the constitutionality of state law whenever two preconditions are satisfied: first, she has previously opined that the law is unconstitutional, and second, a state officer refuses to enforce the law in reliance on that opinion.113 This express duty to attack is somewhat narrow because it only applies when the two preconditions are met.

Even when codified state law imposes an obligation to defend, the duty’s implications are rather uncertain and raise a host of questions. What sort of arguments must the attorney general make at trial or on appeal? Any argument, even if implausible? Only plausible arguments? Or only those arguments that actually persuade the attorney general, meaning that if there are none, she need not mount a defense even if others think there is a plausible argument? Relatedly, must she advance (plausible or persuasive) legal arguments that the state supreme court or the U.S. Supreme Court has previously rejected in another legal context? What if a supreme court has already declared a state law to be unconstitutional (or otherwise preempted)? Must the attorney general nonetheless make the same arguments again because she has a duty to defend and hope that the supreme court will change its view?

There is the separate issue of whether to appeal. In particular, must the attorney general with a duty to defend appeal unfavorable trial court judgments that strike down state law? If so, must she continue to appeal until the highest court rules?114 One might suppose that anything short of continual defense, however futile, violates the duty to defend. Yet one might also imagine that duties have implicit limits and that context matters. Though soldiers are duty-bound to defend their country, that obligation is not unyielding, for even soldiers may surrender to the enemy in certain circumstances.115 Similarly, one might suppose that the duty to defend applies only when a defense has a prospect of success in the courts."
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So some New England law student nonsense ninjas attempted to answer a question, which resulted in them reaching no conclusions whatsoever but instead simply asking more questions and confusing themselves even more. Color me unsurprised.
 
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