News: CJ Exclusives

Cooper’s Refusal To Defend State Part of National Trend

Experts say partisan differences between AGs, governors, legislatures fuel disputes over legal representation

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Shutterstock photo

State Attorney General Roy Cooper’s refusal to represent North Carolina in a federal lawsuit over House Bill 2 is just one part of an expanding trend that sees attorneys general across the United States picking and choosing, depending on their party affiliation, which cases they will represent, some experts say.

Cooper, who announced his decision in March, stated that he would not defend any agencies over the state’s controversial “bathroom bill” because “my office has had its own nondiscrimination policy that includes, along with other protections, marital status and sexual orientation — two classes not protected by the state.”

This is not the first time Cooper has defied the wishes of the legislature. In 2011, despite appeals from the Republican-led General Assembly, Cooper refused to join a multistate lawsuit challenging the constitutionality of the Affordable Care Act, or Obamacare.

H.B. 2 overturned a Charlotte ordinance requiring that all public and private bathrooms, changing rooms, and other shared facilities in the city be open to individuals based on the gender with which they identify. State law now requires that transgender individuals use showers, restrooms, and locker rooms in public facilities that match the gender on their birth certificates. Private businesses may continue to set their own policies regarding gender identity and sexual orientation.

Following his refusal to represent the state in all resulting lawsuits, Cooper — who is running against Republican Gov. Pat McCrory in this year’s gubernatorial election — called on the governor and legislature to overturn the law, saying the measure was unconstitutional.

On June 2, McCrory called on Cooper to resign, saying Cooper has put “politics over doing his job.”

A similar legal battle arose in Wisconsin earlier this month, when state Attorney General Brad Schimel, a Republican, announced that he would not appear on behalf of the state’s Department of Public Instruction in a lawsuit challenging the state’s ability to determine a religious school’s denomination for the purpose of allocating transportation funding to students. The state provides bus transportation funding for students attending religious schools, but limits that funding if two schools from the same denomination are in the same district.

The independent St. Augustine School is less than a mile from the St. Gabriel Catholic School, which is affiliated with the local Catholic diocese. DPI said St. Augustine School also is Catholic, and students involved in the lawsuit argue Superintendent Tony Evers, a Democrat who opposes many of the state’s school choice programs, is trying to deny their funding arbitrarily.

Schimel’s office defended its decision to withhold representation, saying, “We believe different representation was appropriate based on our legal analysis of DPI’s position.”

In cases where a state attorney general refuses to represent a state agency or department, inaction often has more to do with politics than with constitutional or ethical conflicts, says University of Virginia law professor Saikrishna Prakash.

Prakash, who with College of William and Mary professor Neal Devins, co-authored the 2015 study “Fifty States, Fifty Attorneys General, and Fifty Approaches to the Duty to Defend,” notes that state laws across the country are inconsistent about the specific duties of an attorney general, and the study concludes this legal haziness makes it easy for AGs to turn controversial cases into political power plays.

“With Democrats and Republicans squarely divided on issues like same-sex marriage, gun control, and campaign finance, we predict that attorneys general will increasingly seek political advantage by refusing to defend (or insisting on the defense of) laws that divide the parties,” the authors say. “We also foresee that failures to defend will be especially likely to occur in states where the attorney general is of a different political party than the governor, legislature, or the preceding attorney general.”

Former North Carolina Supreme Court Justice Bob Orr says Cooper’s political maneuvering raises legitimate questions about whether Cooper should resign his office and campaign full-time. Orr points to state constitutional and statutory requirements as evidence that Cooper is — at the least — not following his job description. 

“I think there are some very legitimate professionalism issues here that frankly maybe the State Bar needs to clarify,” Orr told Carolina Journal. “But I do think that the attorney general and his employees are obligated under the laws of the state to represent the state unless there is a specific conflict, or the client, whatever agency or entity it may be, says, ‘we don’t want the AG to represent us.’”

“But my concern really is conflict,” Orr continued. “I can’t ever remember a sitting AG running against a sitting governor, and it’s not a good situation for them to continue to be able to sort of pick and choose when the AG represents the state. I think there’s a statutory responsibility, period, that’s says the AG represents the state. Not how he or she might choose to represent the state.”

But during a June 7 interview with Time Warner Cable News, Prakash said the statutes are still too vague in many states, North Carolina included, to say for sure whether or not attorneys general like Cooper or Schimel are in conflict with the law —making legal subjectivity inevitable.

“I’ve said that AG stands for ‘Aspiring Governor,’” Prakash said. “Every attorney general sees themselves in the governor’s mansion. … I think they’re all thinking about politics when they make these decisions. …Where the law is unclear, politics will affect the attorney general’s decision to defend or not to defend. I’m not taking a position on what’s going on in North Carolina. I’m just saying that this is happening everywhere, and it’s happening in part based on politics.”