Herring: The right side of history

Mark HerringWhen I went to the polls last November, it was primarily to cast one vote: for Mark Herring for AG. I knew that the other statewide candidates didn’t need my vote – they had plenty of folks who were going to push them over. But I was concerned that Herring, who, once elected, would be in a position to affect me significantly, needed every single vote that he could get. I keep reminding folks that this was the race that was going to be close, that this was the one we had to focus on.

2013StatewideResultsSBE I did not relish the thought of  four years of Cuccinelli 2.0 I knew what it would mean, not just for me personally, but for Virginia. And, truthfully, it felt really, really good to vote for somebody, instead of against the other guy.

And I was right. Some folks who voted for governor didn’t bother to vote for AG. The race went to a recount.

My vote helped to propel Mark Herring to office. And today, he made me so proud of that vote.

There are those who talk the talk – and those who walk the walk. Herring convinced me the first time we sat down to chat that he was one who walks the walk. His action today should put everyone on notice that he will walk the walk.

From his email this afternoon:

A short time ago, I announced that after thorough but prompt legal review, I have concluded that Virginia’s ban on same-sex marriage violates the Due Process and Equal Protection clauses of the Fourteenth Amendment to the United States Constitution.

Therefore, I will not defend Virginia’s ban on same-sex marriage in court later this month. The Commonwealth will instead side with the plaintiffs who have brought this case and side with every other Virginia couple whose right to marry is being denied.

This decision is based on my analysis of the law and my duty to fulfill the obligations of the office of attorney general. To defend a law that I have concluded is unconstitutional after thorough review would be a violation of my oath, a misuse of the office, and would be inconsistent with the precedents established by prior Virginia attorneys general.

Virginia is in many ways the cradle of democracy. Washington, Jefferson, Madison, Mason, Monroe and others called our state home. And America’s first freedom, religious freedom, was written into law only a few blocks from my office in Richmond. As Virginians, we have much to be proud of. But too often in our history, our citizens have had to lead the way on civil rights while their leaders stood against them. This will not be another instance.

Mark is on the right side of history. And yes, I stand with him.

Being a triple minority makes me very aware of how easy it is to relegate people to second-class citizenship. That’s not the America that promises freedom and justice for all. All means all – not some.



23 thoughts on “Herring: The right side of history

  1. If you can find the brief, please post it. I’d be interested to see how much credence there is to the Republican’s claims that he’s setting a dangerous precedent by actively siding against the Virginia Constitution. I’m happy he refused to defend the law in court, but I could have sworn a central focus of his campaign was stopping political activism.

    Refusing to defend unconstitutional laws is one thing, Cuccinelli did it regularly, but never did he, or any other VA AG as far as I can find, actively side against Virginia in a lawsuit.

    Functionally speaking, I don’t think it will make any difference since he’s refused to defend the law, so it would seem to be a waste of money and the first shot in a 2017 gubernatorial primary.

    1. “Functionally speaking, I don’t think it will make any difference since he’s refused to defend the law”

      I’m not sure I agree. Ethically a lawyer may (under certain circumstances and with appropriate notice) withdraw from representing a client. Withdrawal would, of course, be not only appropriate if Herring believed the law to be unconstitutional, but it would also be his ethical duty to withdraw.

      Switching sides on a client is a completely different story. Even when a lawyer can ethically withdraw, there’s not court in the entire United States that would allow him to represent his former client’s opponent. What Herring is doing here would be akin to a lawyer taking on a criminal defendant and then dropping out and joining the prosecution in the early stages of a case. The Attorney General is a lawyer subject to all of the same ethical duties as any other lawyer in Virginia. It seems to me that Herring is in treacherous ethical waters here.

  2. Interesting. I thought it was the COURT’s job to decide what is and is not Constitutional, not the Executive’s. Can the Governor simply not ignore laws he considers unconstitutional?

    1. Departmentalism has a long and storied history in the United States of America. Part of that story invariably is people forgetting about all the times they thought it was a brilliant idea when it was their guy proposing it. See, eg, Lincoln’s speech on Dred Scott (“Why this same Supreme court once decided a national bank to be constitutional; but Gen. Jackson, as President of the United States, disregarded the decision, and vetoed a bill for a re-charter, partly on constitutional ground, declaring that each public functionary must support the Constitution, ‘as he understands it.'”); see also Mitt Romney’s declaration that he wouldn’t enforce the individual mandate after SCOTUS upheld its constitutionality in Nat’l Fed’n of Indep. Bus. v. Sebelius).

      1. You first example is completely irrelevant here. It is within the President’s authority to veto ANY bill he does not like, for ANY reason or for none at all.

        Your second example is valid, though we now have Pres. Obama simply decreeing parts of the law suspended because they are inconvenient to him. However, Romney’s position is also quite understandable, considering that to reach such a ridiculous conclusion in the second part of the ruling, the Court had to overturn the conclusion it had made in the first part of the same ruling.

        1. Hah. Sure. No logical fallacy there.

          The Supreme Court rules that a duck is not a chair. Supreme Court rules that a duck is a waterfowl. Supreme Court has therefore overturned is conclusion as to whether a duck is a chair.

          /sits back in his duck with a self-satisfied smirk.

          1. Not at all. In the first part, the Court concluded that the penalty was NOT a tax, because if it WERE a tax the Court could not rule on it before anyone had actually paid it. In the second part, they had to overturn that precedent and say it WAS a tax, because if it were NOT a tax, it would be unconstitutional.

    1. Paraphrasing Herring’s brief doesn’t address the ethical problem created by switching sides on a client in the middle of a case. Herring could ethically have withdrawn from the case as Cuccinelli and others have done in the past. His reference to a brief that Kilgore joined a decade ago falls far short of explaining away what appears to be a textbook conflict of interest: taking the side opposite one’s own client. Herring has to do much better than that.

      1. How in the world our ban on recognizing same sex marriage violate the Equal Protection Clause of the 14th Amendment is beyond me. Both homosexuals and heterosexual have the same legal options. Homosexuals just don’t like their legal options. I know plenty of heterosexuals who don’t like any of their legal options, either, and so also remain unmarried.

        This differs considerably from Loving, because Blacks and Whites did NOT have the same legal options before that ruling.

        1. Apologies for the misunderstanding then. I’m sure you’re no stranger to the difficulties of trying to read someone’s tone/intent over the internet.

    1. Typed in Word and pasted here so please forgive any formatting errors.

      I listened to the entire 22-minute interview. The first 15 minutes or so of the interview is completely irrelevant to the ethical issues raised by Herring’s actions. In fact, almost none of the interview deals with those important issues.

      First of all, it is NOT true that previous attorneys general have done what Herring is doing now, i.e., switching sides in the middle of a case. Cuccinelli refused to defend a law in the past. That is different from not only refusing to defend a law but ALSO switching sides and arguing that the law ought to be overturned. The ethics rules allow an attorney to withdraw as counsel (see below), but they specifically prohibit attorneys from taking positions that are adverse to their clients.

      In the Preamble to the Virginia Rules of Professional Conduct (http://www.vsb.org/pro-guidelines/index.php/main/print_view) we see that “These Rules apply to all lawyers, whether practicing in the private or the public sector.” This shows that Snook is incorrect about the duties of government attorneys. Public attorneys do not have DIFFERENT ethical obligations; they have ADDITIONAL ethical obligations, one of which is, as Snook points out, to see that justice is done (although, in fact, according to the Preamble that is a duty of every lawyer in Virginia: “A lawyer is . . . a public citizen having special responsibility for the quality of justice.”).

      Herring’s switching sides to argue against his client (the people of Virginia and the amendment that they approved, according to Herring’s own op-ed) is prohibited by the Rules. Rule 1.7 says that “a lawyer shall not represent a client if . . . the representation of one client will be directly adverse to another client.” The comment to the rule continues in that same vein: “As a general proposition, loyalty to a client prohibits undertaking representation directly adverse to that client without that client’s consent. . . . Thus, a lawyer ordinarily may not act as advocate against a person the lawyer represents in some other matter, even if it is wholly unrelated.” Rule 1.9 also shines a light on prohibited conduct for all lawyers: “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless both the present and former client consent after consultation.”

      Herring is violating both of those rules. If he’s still representing the Commonwealth of Virginia in this case, then he cannot ethically remain in the case and argue the case for the plaintiffs. If he takes the position that he’s withdrawn from representing Virginia in this case, then he still can’t take actions that are materially adverse to Virginia’s laws.

      As it regards withdrawing from representation, Snook made the exact point that I made above. Attorneys may withdraw from representation if (as only on example) “a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent.” (Rule 1.16(b)(3)). But you have to keep reading (which is, after all, fundamental). The next subsection says: “In any court proceeding, counsel of record shall not withdraw except by leave of court after compliance with notice requirements pursuant to applicable Rules of Court.” As far as I’m aware, Herring hasn’t done that. He could withdraw, but (as far as I’m aware) he hasn’t even asked for leave of court to withdraw. In fact, by filing his brief, Herring more or less proves that he has no intention to withdraw from this case. Refusing to withdraw when (according to his own op-ed) he can no longer represent his client’s position is about as clear a violation of the ethical rules as you can imagine.

      In addition, notice that in Snook’s example he doesn’t even suggest in the least that it would be appropriate for him to join the other side of the case and argue that his former client should lose. All he can do is sit the case out. Likewise, that is all Herring can do. He can issue an advisory opinion on the matter as he is permitted to do by the Virginia Code, but he is absolutely prohibited from switching sides in the middle of a case.

      Snook’s punitive damages example is not a good parallel. In that scenario, Snook would still be arguing that his client should win; he would just not be using the exact argument that his client wants. Furthermore, he would not be taking a position that is adverse to his own client. That’s not what Herring is doing. In Snook’s hypothetical, Herring would not only be refusing to argue for a million dollars in punitive damages; he’d also be arguing that his client should recover nothing at all.

      Imagine this scenario:

      “Good morning, judge. Before we get started today I have a motion to withdraw as counsel for the defense and enter an appearance for the prosecution. I just really feel like my client is guilty and, on top of that, he’s not such a nice guy. Plus, I think he has no valid argument to win the pending motion to suppress evidence. I can’t stay in a case my client ought to lose, can I judge? I mean, you understand why I have to change horses in the middle of the stream, right?”

      That’s a better parallel for what Mark Herring is doing. Common sense tells anyone who looks at that, that it isn’t right. Mark Herring and Lloyd Snook know it too.

      1. At Vivian’s request, I am offering some defense of my position (and Mark Herring’s position).

        1. What should an attorney do when the attorney is persuaded that a new change in the law substantially undercuts his, or his client’s, position? An attorney has an obligation to bring to the attention of the Court any controlling authority of which the attorney is aware. The attorney may then attempt to distinguish it away, or to preserve the record for appeal to a higher court with the power to overrule that controlling authority, but the attorney must acknowledge the controlling authority. The US Supreme Court certainly counts as controlling authority.

        The difficult issue — and the issue where I think one could legitimately quibble with Herring’s decision — is the question of whether US v. Windsor is truly controlling. From a technical standpoint, it is really not; the precise issue was not presented in US v. Windsor, though as Justice Scalia noted, the logic of the majority leads inexorably to the conclusion that no state may discriminate against same sex couples. As I read US v. Windsor, it is inconceivable to think that that court, on that logic, would rule in favor of Virginia.

        In the private world, an attorney would go to his client and say, “We’re toast. Lets settle this civil claim for pennies on the dollar, or let’s plead guilty to a lesser charge.” In the public world, the Attorney General or the Commonwealth’s Attorney
        has to make his or her best judgment and go with it. There is no client to call up and say, “The US Supreme Court just decided a case that says we’re going to lose; what do you want to do now?” The closest parallel here, in my mind, is to the prosecutor who is prosecuting a sodomy case right after Lawrence v. Texas came down in 2003, in essence invalidating sodomy laws across the country. A stickler on legal precedent could have said, in 2004, “Lawrence v. Texas invalidated the Texas sodomy statute. It didn’t invalidate the Virginia statute, even though the only logical interpretation of the decision is that Virginia’s statute is also unconstitutional. Until the US Supreme Court invalidates that Virginia statute, I’m going to keep enforcing it.” Some prosecutors did just that. Some prosecutors even bullied defendants into convictions for sodomy after Lawrence v. Texas was decided. Personally, I think that was unethical, because they failed to acknowledge controlling authority, but that’s another issue for another day.

        2. Now let’s get more specific. What would a lawyer say when the judge looks down from the bench and asks, “Counsel, do you agree that the US Supreme Court said in Windsor that there was no legitimate state purpose in treating same sex marriages differently from different-sex marriages?” The honest assistant AG would have to say “Yes, I agree.” Then the judge asks, “And do you agree that the only difference between this case and Windsor is that in Windsor, the Court said that a state cannot treat a same sex marriage from another state differently from a different sex marriage from that other state, whereas in this case, the plaintiffs are asking the Court to rule that Virginia cannot treat a same sex couple applying for a marriage license differently from a different sex couple applying for a marriage license?” And again, the honest assistant AG would have to say, “Yes, we agree that that is the essential distinction between the cases.” And the judge would then say, “And when the Court said that ‘no legitimate purpose overcomes the purpose and effect to disparage and to injure’ gay couples when it comes to recognizing the validity of a union entered into in another state, do you agree with me that the Court was more concerned with upholding the ‘personhood and dignity’ of the people in the relationship, than in upholding the powers of the states to define marriage?” And again, the Assistant AG would have to say, “Yes, that’s what the Supreme Court said.” And the judge would conclude the questioning by asking, “Then if Windsor stated that protecting the ‘personhood and dignity’ of the individuals involved is more important than protecting the power of the Commonwealth to define marriage, doesn’t that control this case?” And the Assistant AG could either say, “Yes,” or lie and say “No.”

        I suspect that Mark Herring, together with the other folks in his office, spent a lot of time trying to figure out whether there was a way to weasel out of a straightforward answer, and could find none. Lane Kneedler, Mark Herring’s primary senior adviser here, is a former law professor and former Deputy AG. He knows what to expect, and he knows what an Assistant AG can and cannot say when asked a direct question by a federal judge.

        3. Would it have been better if the AG had NOT filed the memo, as Joseph clearly feels? Would Joseph feel better if, at the oral argument, the Assistant AG were to refuse to defend the Constitutional provision? I would think that Joseph and those who feel as he does would feel betrayed. By filing the memorandum, he gives those who want to try to defend the Constitutional provision fair notice, and he gives the Court an opportunity to consider the question of who else might have standing to oppose the lawsuit. AG Herring’s memo makes clear that there will be attorneys for some of the other defendants and amici curiae who will be willing to argue the other side; this allows the Court to give them an opportunity to step up to the plate.

        4. Joseph says that this is like the defense attorney who stands up and says, “Judge, I’ve decided that my client is guilty, and I’m joining the prosecution.” He actually has the simile exactly backwards. It is really like the prosecutor who stands up and says, “My sodomy prosecution cannot go forward after Lawrence v. Texas, so I’m dropping the charge.”

        5. There are a lot of similar cases and similar arguments.; Herring’s memo quoted from such conservative illuminati as Ken Cuccinelli, then Solicitor General John Roberts, Justice Scalia, and Robert Bork for the authority that an AG may change his or her position and suggest that a government action cannot be defended. Perhaps the closest parallel is to the California AG, who refused to defend the California ban on same-sex marriages.

        6. The only thing that makes this at all different is that one AG filed in support of the state’s ban, a new AG came in, and that new AG reversed his office’s position. While that is unusual, it doesn’t change Mark Herring’s ethical duty. His duty is to advocate for a just and fair result under the law. The fact that his predecessor and he had different opinions as to what that duty led him to do doesn’t change either his duty or how we should look at how that duty was discharged.

        That’s enough for now — I’m a private lawyer, trying to meet my payroll on Friday.

        1. Point 2 is very interesting: “2. Now let’s get more specific. What would a lawyer say when the judge looks down from the bench and asks, “Counsel, do you agree that the US Supreme Court said in Windsor that there was no legitimate state purpose in treating same sex marriages differently from different-sex marriages?” The honest assistant AG would have to say “Yes, I agree.””

          But Windsor does NOT said that. Read for yourself: http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf

          1. Correct about the Windsor case, Warren. Mr. Snook admits as much in his own reply (to which I might respond more fully later) when he says “The difficult issue . . . is the question of whether US v. Windsor is truly controlling. From a technical standpoint, it is really not; the precise issue was not presented in US v. Windsor.” So there is a good faith argument to be made that Windsor is not controlling authority in this case even if it doesn’t carry the day.

            In any event, the duty is to “disclose to the tribunal controlling legal authority in the subject jurisdiction know to the lawyer to be adverse to the position of the client AND NOT DISCLOSED BY OPPOSING COUNSEL.” (Rule 3.3(a)(3); emphasis added). The plaintiffs’ whole case is built on the Windsor case, so Herring is under no obligation to “disclose” anything and that’s not what he’s doing. He’s merely agreeing with the plaintiffs’ arguments.

            Now, as a practical matter, Mr. Snook is also correct that the Supreme Court foreclosed any possibility that these marriage laws would survive once one of them reaches their court (despite any protestations to the contrary). That’s really neither here nor there as it regards the ethical issues since, as he himself admits, there is a good faith argument to be made, i.e., Windsor was not about state marriage laws, but only about DOMA.

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