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On September 30, 2013, North Carolina Attorney General Roy Cooper had a problem. The federal government had just filed suit against the state of North Carolina, alleging that the state’s recently passed “Voter I.D.” law was unconstitutional. The Republican-led legislature had passed the bill just two months earlier, and as it sat pending on Republican Governor Pat McCrory’s desk, Cooper, an independently elected Democrat, had come out against it. After initially sending Governor McCrory a letter urging him to veto the bill. Cooper had created an online petition where members of the public could show support for a veto as well. Cooper’s office had also issued a press release, stating that the law “makes it harder for people to register and vote,” and that it would “do damage” to the state’s election process. Despite Cooper’s efforts, Governor McCrory signed the bill into law on August 12.
Then came the lawsuit by the U.S. Department of Justice—and Cooper’s dilemma. The responsibility for defending the constitutionality of state laws in court fell to his office. but he had quite clearly and publicly expressed his view that the statute “would do damage” to the state. As the state’s Attorney General, was he required to defend a law that he publicly opposed? Could he decline to defend? What reasons would justify such a decision? What actions could the General Assembly and Governor McCrory take to assure a vigorous defense of the new statute that they both supported?
The law sheds some light on the answers to these inquiries but is ultimately unclear. While this ambiguity is due in part to the historical development of the office of Attorney General, it is also likely attributable to the Democratic Party’s dominance of state government in the past century. While political and policy conflicts inevitably occurred, these disputes generally took place within a single-party framework, and North Carolina courts were rarely forced to determine the relative rights and obligations of the Attorney General. As a result, the Attorney General’s duty to defend the constitutionality of state laws and the intra-government relationships involved in such a defense have received only limited treatment by state courts. Meanwhile, a changing political dynamic in North Carolina and a growing willingness among attorneys general in other states to decline to defend their states’ laws in court have added renewed relevance to these important questions. As Attorney General Cooper’s dilemma illustrates, this changing legal and political environment deserves additional exploration. This Comment seeks to engage in such exploration by sketching out the edges of the powers and obligations of the office of the North Carolina Attorney General and other government actors with respect to the defense of the state’s laws. These edges are admittedly rough, but, at bottom, this analysis provides a framework for thinking through elected officials’ potential responses when the State’s laws are challenged.
The analysis proceeds in four parts. Part I will review the historical development of the North Carolina Attorney General, as well as set out the current sources of the office’s authority and responsibilities. Part II will then examine the Attorney General’s duty to defend in North Carolina, establish a framework for evaluating the availability of non-defense, and present two specific arguments that might justify declining to defend a state law. Finally, Part III will examine the legal options available to other government actors to assure an adequate defense of a law—both if the Attorney General defends it and if he or she chooses not to do so.
I. The North Carolina Attorney General: An “ancient and honorable office”
A. Historical Development
The office of Attorney General originated in England sometime over the course of the late thirteenth century, although apparently not as an office, but rather simply as a reference to the regular employment of a personal attorney to represent the King before his courts. By the mid-fifteenth century, however, the position had taken on an official capacity—the attornatus generalis in Anglia —and by the seventeenth century, the office had assumed its modern place as “the preeminent legal representative of the Sovereign.”
During the seventeenth and eighteenth centuries, the office developed a dual role. On the one hand, the English Attorney General served as “the law agent and adviser of the Sovereign,” a role consistent with the earliest outgrowths of the office, when the Crown was an individual political entity somewhat distinct from the concept of the “State.” On the other hand, as English political institutions solidified, the Attorney General was understood to represent the State itself, rather than simply the Crown. In effect, the King’s attorney became England’s attorney. This public function ultimately formed the basis for the common law view that “the Attorney General was in possession of nearly unlimited powers to act unilaterally as the representative of the people’s legal interests.”
It was in this form that the office of the Attorney General came to the American colonies, including North Carolina. The colonial governments appointed attorneys general on behalf of the Crown, and these officers possessed the same powers as the English Attorney General, essentially serving as his representatives abroad. After the American Revolution, all thirteen newly formed states adopted the office of the Attorney General in one form or another.
B. The North Carolina Attorney General
Although the office’s particular place in the state’s constitutional scheme has shifted over time, North Carolina has included the Attorney General among its constitutional officers from the very beginning of its independent statehood. North Carolina’s first constitution, ratified in 1776, established the office but prescribed no duties or powers. Interestingly, this first constitution placed the Attorney General within the judicial branch of government, “apparently on the theory that he was an officer of the court,” and directed the General Assembly to appoint the Attorney General, along with judges, to lifetime tenure.
The Constitution of 1868, adopted after the Civil War, changed this scheme by placing the Attorney General within the newly created “Executive Department” as an ex officio legal adviser to it. He was to be publicly elected to four-year terms, and the office’s duties were to be “prescribed by law.” During this period, the general responsibilities and obligations of the modern North Carolina Attorney General developed as the General Assembly acted on its constitutional mandate and created a statutory framework for the office. This involved the expansion of some powers, such as a solidified role as the legal representative of the growing state apparatus, continued expansion of the responsibility to handle all criminal appeals, and explicit recognition of the right to bring actions in certain areas of the public interest. The General Assembly also diminished other responsibilities, particularly in the criminal arena, as the legislature opted for a model of district solicitors to manage most of the state’s criminal prosecutions at the trial level.
It was within this evolving legal framework that the new Constitution of 1971, currently in force today, was constructed and ratified. Although the 1971 Constitution included some significant structural changes to various parts of state government, it left the fundamental arrangement of the Attorney General’s office intact. The Attorney General continues to be elected statewide every four years, to serve as an “Officer” in the executive branch, and to have his or her duties “prescribed by law.” No other constitutional powers or duties are assigned to the office.
The constitutional direction that the Attorney General’s duties are to be “prescribed by law” makes the General Statutes of North Carolina the primary basis for defining the scope of the office. The “most significant statutory grouping of powers” is found in section 114 of the General Statutes, which establishes a Department of Justice, headed by the Attorney General, and lays out the office’s authority and obligations. Importantly, the statute sets out from the beginning that the North Carolina Attorney General retains the powers of the Attorney General at common law. While the scope of these powers will be discussed in further detail, generally “[t]he Attorney General, as primary legal officer of the state, has consistently been viewed in common law jurisdictions as possessing the power to initiate, conduct, and maintain any suits necessary for enforcement of the laws of the state, preservation of order, and protection of public rights.” In addition to these common law powers, the General Statutes provide other specific duties and powers at the disposal of the Attorney General. Thus, one must turn to these statutes to elicit and evaluate the extent of the Attorney General’s duty to defend the constitutionality of the laws of the state.
II. To Defend or Not to Defend?
A. The Duty to Defend in North Carolina
The immediate and rather obvious inquiry is whether a duty to defend even exists in North Carolina. As the development of the office suggests, the duty of representing both the public interest at large and individual government actors in their official capacity has historically fallen to the Attorney General. But the question remains as to whether the duty to defend is legally mandated or merely a government norm.
Although the answer at the federal level and in other states is not particularly clear, North Carolina’s statutory instructions provide that when the state’s laws are challenged, the Attorney General has a duty to defend the State and its statutes in court. The primary legal basis for this duty is found in section 114-2(1) of the General Statutes, which states:
It shall be the duty of the Attorney General: (1) To defend all actions in the appellate division in which the State shall be interested, or a party, and to appear for the State in any other court or tribunal in any cause or matter, civil or criminal, in which the State may be a party or interested.
Notably, although slightly modified over time, this statute was one of the first passed by the General Assembly after the ratification of the Constitution of 1868. Thus, it is fair to say that once the office was cast in an executive capacity, the law has generally recognized a duty on the part of the Attorney General to defend the State in court. Likewise, since 2001, the Attorney General has been required to submit biannual reports to the legislative leadership and staff regarding all lawsuits in which the constitutionality of a North Carolina law has been challenged. This statute certainly indicates legislative understanding, if not intent, that defense of such suits against the State falls within the purview of the Attorney General.
The Supreme Court of North Carolina has also weighed in on the duty to defend the State or its agencies in all actions in which the State is a party, including, ostensibly, when the constitutionality of a law is challenged. In Martin v. Thornburg. a case later discussed in more detail. the Governor argued that the Attorney General’s statutory duty to appear for the State in all proceedings in which it was a party violated the state constitution because it was in derogation of the inherent executive power constitutionally vested in the Governor. In rejecting this argument, the court reaffirmed the Attorney General’s duty to defend. Specifically, the court stated that “the duties of the Attorney General in North Carolina as prescribed by statutory and common law include the duty to appear for and to defend the State or its agencies in all actions in which the State may be a party or interested.”
B. Declining Defense – A Three-Pronged Framework
Together, the language of the North Carolina statute and the authority interpreting it send a clear message: the Attorney General has a duty to defend in North Carolina. Nevertheless, even a rather explicit duty to defend may not rule out the option of non-defense altogether. At the federal level and across several states, executive officials have redefined the boundaries of their legal responsibilities regarding the defense of statutes, particularly when the constitutionality of the law is reasonably in question.
Is the same option of non-defense legally available to the North Carolina Attorney General? The answer is not straightforward; rather, determining whether non-defense is justified in the face of a well-defined duty to defend requires a fundamental analysis of the nuances of executive power. This Comment proposes a three-pronged conceptual framework for teasing out the potential legal bases for non-defense in North Carolina.
1. Identifying Conflicting Legal Obligations
Logically speaking, refusing to discharge a well-defined duty to defend should only be justified when some other competing legal obligation preempts it. Thus, the first prong of the non-defense framework requires determining whether the Attorney General has other legal obligations that potentially conflict with the duty to defend. When such potential exists, the Attorney General must decide in his or her independent judgment whether a conflict does in fact exist, and if so, whether the competing legal obligation preempts the duty to defend. In short, some duties trump others, and identifying potential inconsistencies between two legitimate obligations of the office lays the logical foundation for justifying non-defense.
2. Isolating the Operative Conflict
The next prong requires isolating the operative conflict between potentially inconsistent duties. For instance, there may always be the potential for conflict between the Attorney General’s duty to defend state law and a duty to uphold the U.S. Constitution; however, that conflict only materializes if a challenged law is unconstitutional. If constitutional, the Attorney General may discharge both duties concurrently: there is no conflict. If unconstitutional, however, the Attorney General’s duty to defend and duty to uphold the Constitution are obviously inconsistent. Thus, the operative conflict between these two competing duties is the constitutionality of the challenged law.
Although this is a somewhat straightforward observation, isolating the operative conflict between competing duties is important because it constrains the parameters of the Attorney General’s independent judgment. In the example above, the only thing the Attorney General should be assessing to determine whether or not to defend the challenged law is its constitutionality. Ideally, other considerations, such as policy or political preferences, should be left out of the analysis. Isolating the operative conflict therefore provides a means of narrowly evaluating the conflicting duties without resorting to extraneous and arguably unauthorized justifications for non-defense.
3. Evaluating the Conflicting Legal Obligations
The final prong of the non-defense framework involves deciding whether the potentially conflicting legal obligations are actually inconsistent, thereby justifying non-defense. At this stage, it is tempting to treat this determination as binary. For example, if the operative conflict is the constitutionality of the challenged law, under a binary line of thought, the law is either constitutional, or it is not; the Attorney General makes this determination and proceeds.
This binary conception, however, is ill-suited to the practical realities of the Attorney General’s available options. For that reason, a better conceptual framework can be derived from Justice Jackson’s seminal concurrence in Youngstown Sheet & Tube Co. v. Sawyer, in which he describes executive power as something of a spectrum, waxing and waning as it corresponds to legislative authorization and prohibition, respectively. Similarly, one can conceive of the Attorney General’s options for evaluating whether a conflict truly exists as lying on a spectrum. At one end, there is no conflict between competing duties, and the power to decline defense is non-existent. At the other end, there is a clear conflict between competing duties, and declining defense is very likely within his or her legal authority. In between, however, is the infamous “zone of twilight,” in which the Attorney General’s duties may not clearly conflict, but may not clearly be consistent.
An example is useful for understanding this fluid concept. Suppose the Attorney General has a well-defined duty to defend and a well-defined duty to uphold the United States Constitution. As discussed, the operative conflict in that situation is the constitutionality of the challenged statute. When determining whether there is a conflict between the two duties, a number of options are available along a spectrum. At one end, all the relevant case law may suggest that the law is clearly constitutional. In that case, there would be no conflict, and the Attorney General’s authority to decline defense would be non-existent. At the other end of the spectrum, perhaps no plausible argument can be made in support of a law’s constitutionality. At that end, there would clearly be a conflict, and the Attorney General’s authority to decline defense would be at its maximum.
However, a number of other options lie along the same spectrum. The Attorney General may decide that a plausible argument for constitutionality exists, although many courts, but not all, have rejected it. Similarly, the Attorney General may decide that a reasonable argument for constitutionality exists, but that the call is truly a toss-up. Perhaps most difficult are those constitutional questions that involve significant policy questions, such as substantive due process claims, wherein societal conceptions of “ordered liberty” are at play. Whose policy considerations should the Attorney General use in making the constitutionality determination—his or her own, those of the “public,” or those of the legislature who passed the law?
This example highlights the difficulty of pinning down whether declining to defend falls within the legal authority of the Attorney General. Ultimately, these decisions are highly fact-specific and require an extensive exercise of the professional judgment of the Attorney General and his or her office. Nevertheless, conceptualizing the power to refuse to defend as falling along a spectrum offers a useful framework for reviewing such a decision, both prospectively and retrospectively.
C. Declining to Defend in North Carolina
This three-pronged conceptual framework for understanding non-defense also serves as a useful guide for examining specific legal arguments potentially available to the North Carolina Attorney General to decline defense. Two arguments in particular stand out as potentially available, resting on two different features of the North Carolina Attorney General: (1) the common law duty to represent the public interest; and (2) the Attorney General’s constitutional oath of office.
1. The Common Law Duty to Represent the Public Interest
North Carolina has adopted the common law of England, asserting by statute that all parts of the common law not inconsistent with state law remain in force. This includes the common law powers of the English Attorney General that existed at the time of the signing of the Declaration of Independence, a fact that the General Assembly has reaffirmed explicitly via statute. Perhaps because the Attorney General’s powers are generally well defined by statute, the Supreme Court of North Carolina has not defined the scope of the supplemental duties recognized at common law. The court has stated generally, however, that “the Attorney General of [North Carolina] has the common law duty to prosecute all actions necessary for the protection and defense of the property and revenue of the sovereign people of North Carolina.” As a result, courts in North Carolina have recognized that these common law powers make the Attorney General a broader legal representative of the public interest, with rights and responsibilities beyond those codified in statute. This empowerment, by its nature, seems to place significant discretion in the office to decide what, in fact, the public interest entails and how to pursue it.
Thus, the first prong of the three-pronged framework is readily apparent: there is a potential conflict between the duty to defend and the Attorney General’s duty to represent the public interest. On the one hand, when the constitutionality of a law is challenged, the State clearly has an interest in having its laws upheld. This interest may, however, conflict with the Attorney General’s conception of the public interest and could arguably justify a non-defense decision in light of the duty to be the legal representative of the greater public. Importantly, the operative conflict here is not the constitutionality of the law; rather, the operative conflict is the challenged law’s consistency with the public interest. As a result, under the third prong, the Attorney General’s legal authority to decline defense lies on a spectrum based on the Attorney General’s conception of the public interest. This conception produces an interesting result: the justifications for non-defense may not necessarily be purely legal.
The Voter I.D. lawsuit and the dilemma it posed for Attorney General Cooper helps illustrate the point. Recall that Attorney General Cooper publicly stated that the recently passed Voter I.D. law would “make it harder for people to register and vote” and would “do damage” to North Carolina’s election process. These statements illustrate that, to some degree, he viewed the law as contrary to the public interest. But are these general policy concerns alone sufficient to justify non-defense? Logically they serve as a legitimate measure of conflicting duties; one cannot be the independently elected defender of the public interest without some extra-legal conception of the public interest. At the same time, the Attorney General’s role is as a legal representative of the state.
A reasonable resolution of this difficult problem hearkens back to the conception of the executive power spectrum, in which the authority to decline defense grows stronger as the conflict between relevant duties grows stronger. Thus, inconsistency with the public interest is at its strongest when legal arguments weigh in favor of unconstitutionality and when the Attorney General’s policy views support that inconsistency; likewise, this is when declining defense is most justified. As legal arguments lose their power and policy differences are the only arrow left in the Attorney General’s quiver, perhaps non-defense may still be justified, but it would be a much harder question.
Although such a specific annunciation of common law powers has never been invoked in North Carolina to justify the non-defense of a state statute, there is legal authority that offers at least some support for the proposition that the Attorney General’s common law powers justify an independent evaluation of state statutes. Specifically, there is authority suggesting that “by virtue of the inherent authority of [the Attorney General’s] office, [he] may bring an action on his own initiative to challenge the constitutionality of state statutes.” One example is a 1915 North Carolina Supreme Court case, in which the Attorney General, acting in his official capacity, challenged the constitutionality of a legislative enactment allowing women to serve as notaries public. In that case, the court explicitly acknowledged that the Attorney General brought the action as a plaintiff, exercised appellate rights, and “strenuously insisted that the act of the General Assembly [in question] was invalid . . . .” Nonetheless, “[t]he Supreme Court did not consider it necessary to cite any authority for the Attorney General to bring such an action, and neither the majority opinion nor the dissent discusses the authority of the Attorney General to challenge the constitutionality of state laws.”
Such authority supports the argument that there may be conflict inherent in the Attorney General’s legal responsibilities and that independent assessments of the constitutionality of a state statute may arise from the Attorney General’s common law duty to protect the public interest. Moreover, if the Attorney General has the ability under the common law powers to challenge the constitutionality of a state statute outright, declining to defend—a seemingly “lesser” offense—would appear to fall within the legal parameters of his or her powers.
As a result, although this argument has its limits, one conceivable legal basis for the Attorney General declining to defend the constitutionality of a state law is the assertion that to do so would be inconsistent with the overarching common law duty, acknowledged by statute, to legally represent the public interest.
2. The Oath of Office
The North Carolina Constitution’s oath of office provides a second argument available to the Attorney General to justify declining to defend a state law in court. Article VI, section 7 of the North Carolina Constitution of 1971 requires any person elected or appointed to a state office to swear the following oath:
I . . . do solemnly swear (or affirm) that I will support and maintain the Constitution and laws of the United States, and the Constitution and laws of North Carolina not inconsistent therewith, and that I will faithfully discharge the duties of my office as [designated office], so help me God.
Although the oath is somewhat standard fare, the plain language of the oath reveals a rather obvious potential for conflict, satisfying the first prong of the non-defense framework. Constitutional officers, including the Attorney General, must swear to support and maintain the U.S. Constitution and federal laws without qualification, while swearing to support and maintain the state’s constitution and laws only to the extent they are consistent with those of the United States. Who gets to decide whether state laws are, in fact, consistent with federal law?
One answer is that the oath of office gives rise to some level of independent executive constitutional evaluation, at least until the judiciary has acted as the final arbiter of the statute’s constitutionality. Under this line of thought, the executive cannot discharge his or her constitutional duties consistent with the oath of office without making some determination of the constitutionality of a law. Otherwise, enforcing or defending a law he or she determines to be unconstitutional would violate the oath of office and, thereby, the Constitution. The operative conflict between the duty to defend and the constitutional obligations embodied in the oath of office thus becomes clear: the constitutionality of the challenged law.
As a result, the third prong of the non-defense framework requires once again examining the potential options available to the Attorney General in terms of assessing constitutionality. Although conceptually the ends of the spectrum form neat little boxes, in practical terms, very few laws whose constitutionality are facially challenged are either clearly constitutional or clearly not. Thus, the majority of the “action” in the oath-of-office argument is determining at what point the lack of reasonable or plausible arguments begins to justify non-defense. Certainly, as reasonable claims of constitutionality dwindle, the case for non-defense grows stronger. But if there is a plausible—albeit farfetched—constitutional claim, is the Attorney General required to make it?
Interestingly, at the federal level, absent other categorical exceptions to defense, the Office of the Solicitor General generally draws this line at “professionally respectable” or “reasonable” arguments. This policy is rooted in a “presumption” that legislative and executive actors believed the legislation to be constitutional at the time of its passage, and thus, the Solicitor General “tr[ies] to craft a defense of the law in a manner that can best explain the basis on which the political branches’ presumed constitutional judgment must have been predicated.” As a result, the Solicitor General will generally defend if such reasonable arguments are available.
Such a conception may be a suitable model for the North Carolina Attorney General, as it attempts to strike a balance between due deference to other branches of government while also recognizing the necessity of professional judgment given the office’s legal expertise. Alternative conceptions may move further in the direction of deference, requiring defense when any plausible argument is available, even if inconsistent with the general direction of the constitutional jurisprudence. Likewise, alternatives may favor vesting greater independent judgment in the Attorney General, requiring defense only when the Attorney General has personally concluded that the law is, in fact, constitutional. While the duties of state attorneys general vary widely, at least some of those attorneys general who have refused to defend state laws would trend toward the latter interpretation.
What is perhaps most important to recognize is that independent constitutional judgments in light of the oath of office are not binary; rather, they cover a wide range of available options, and the power to decline defense wanes as arguments supporting constitutionality become more readily available. Thus, provided the North Carolina Attorney General can successfully assert the lack of support for a law’s constitutionality, the oath of office provides a potent argument to justify non-defense.
III. Filling the Holes: The Response of Other Government Actors
Given the potential political and policy differences between the Attorney General and other government actors who support the legal defense of a statute, the Attorney General’s decisions concerning the duty to defend ultimately set up a fascinating legal landscape, rife with the potential for conflict and replete with legal uncertainty. It is at once the politico’s dream and the lawyer’s nightmare. Nonetheless, these uncharted waters demand some cartographical commitment.
Perhaps the most immediate question concerning the role of other government actors in defending state law is what steps they may take to ensure defense when the Attorney General declines. However, the Attorney General and his or her staff may engage in non-defense in a number of ways, even while technically participating in the litigation. Thus, examining the legal options of other government actors when the constitutionality of a state law is challenged is actually twofold. First, if the Attorney General declines to defend, what actions can and must other government actors take to defend the law in court? Second, if the Attorney General discharges the duty to defend, but with obvious political or policy stances that conflict with the challenged law, what actions can and must other government actors take to ensure an “adequate” defense? This part examines both of these questions in turn.
A. The Attorney General Declines to Defend
If the Attorney General declines to defend the constitutionality of a state law based upon one of the justifications discussed above, what may other major government players do about it? The question is a simple one, but the answer is not obvious. The different branches of government have different legal options available.
1. The Governor
Should the Attorney General decline to defend the constitutionality of a state law, the government official with the clearest legal authority to take up the defense would be the Governor. The North Carolina Constitution establishes the office of the Governor, in whom “[t]he executive power of the State shall be vested.” This inherent executive power, on its own, would likely be sufficient to justify executive defense of a statute once the Attorney General has declined to participate. Thankfully, however, this is an area where statutory authority provides additional guidance, confirming the Governor’s authority to engage in legal defense of state laws.
Section 147-14(a) of the General Statutes states, “In any case or proceeding, civil or criminal, in or before any court or agency of this State or any other state or the United States, . . . the Governor may employ such special counsel as he may deem proper or necessary to represent the interest of the State.” The Supreme Court of North Carolina has stated that this statute “gives the Governor the unrestricted right to employ such special counsel as he may deem proper or necessary.” As a result, in the event the Attorney General declines to defend, the Governor certainly would have legal authority to retain outside counsel to defend the constitutionality of the state laws.
Legal authority to act, however, does not equate to a duty to act. Despite the power to engage outside counsel to defend the State, the question remains as to whether the Governor, as wielder of the executive power of the state, has the ultimate obligation to do so in the event the Attorney General refuses. There certainly is not the same statutory basis for the Governor’s duty to defend as exists for the Attorney General. In fact, the statutory authority to employ such special counsel in section 147-14(a) is merely permissive, not mandatory. Likewise, the gubernatorial duties set out in the state constitution do not expressly direct the Governor to legally defend the laws of the state. The Constitution does include a so-called “Take Care” clause, stating that “[t]he Governor shall take care that the laws are faithfully executed,” but does this clause demand executive defense in addition to enforcement?
There is no legal authority in North Carolina that directly answers the question, and the federal government has essentially determined that the identically worded “Take Care” clause in the U.S. Constitution does not create a duty to defend. Moreover, even if the clause were construed to create such a duty, the Governor would likely still be able to claim the same arguments related to the oath of office that might justify non-defense by the Attorney General in the first place. In sum, in North Carolina, there does not appear to be any gubernatorial duty to defend. The Governor may certainly engage counsel at his or her discretion to represent the State, but the Governor does so at his or her pleasure.
2. The General Assembly
The potential for a complete refusal by the entire executive branch to engage in defense of a state statute places the General Assembly in a difficult position. Consider the situation that could arise when the Attorney General and the Governor are of similar political and policy persuasions, while a different political party controls the General Assembly. The General Assembly passes a law that both the Attorney General and the Governor oppose. The Governor vetoes the bill, but the General Assembly passes the bill over his or her veto. A lawsuit challenges the constitutionality of the new law, and the Attorney General, asserting the common law duties to the public interest, declines to defend, while the Governor, who objects to the bill, refuses to employ counsel to represent the State. What can the legislature do?
a. Representing the General Assembly Versus Representing the State
A first possible response may be that the General Assembly, like the Governor, may simply hire outside counsel to represent the interests of the State. The legal authority to undertake such an action, however, is not clear. Unlike the statutory guidelines that direct the Attorney General to represent the state in court and allow the Governor to employ counsel to do the same, the General Assembly is granted no such explicit statutory power. Likewise, the constitution seems to contemplate that the legal representation of the State’s positions falls to the executive branch. As a result, it would seem that the legislative power to hire outside counsel to represent the State’s interest in court would be, at best, based on shaky legal footing and, at worst, in conflict with the doctrine of separation of powers.
It is important, however, to distinguish the power to represent the State’s interest in court from the power to represent the General Assembly’s interest in court. Although courts have not explicitly discussed the legality of such action, it is a well-settled practice of the General Assembly to engage outside counsel to represent its own interest as a co-equal branch of government. As recently as January of 2013, the Supreme Court of North Carolina has made such an acknowledgment.
In that case, Dickson v. Rucho, several groups challenged the constitutionality of the State’s recent redistricting plans. The General Assembly’s legislative leadership, including the chairs of the Redistricting Committees in both chambers, engaged outside counsel to provide legal advice regarding the redistricting process. When the legislative leaders claimed that their communications with these private attorneys were privileged, the Court acknowledged that these documents were subject to attorney-client privilege by nature of the engagement. The authority of the General Assembly’s leadership to engage outside counsel in their official capacity was never referenced or challenged. In fact, the outside counsel continued to represent the legislative leaders in conjunction with the Attorney General’s office throughout the litigation, signing briefs as representatives for the “legislative defendants,” while the Attorney General’s staff signed briefs as representatives of “all defendants.” Thus, although the General Assembly may not possess the power to represent the State as a party, it does have the power to engage outside counsel to represent its own interests in court. While this may be a significant power, it does not provide much assistance if the General Assembly is not named a party in the suit. Thus, if the State is a named party when the constitutionality of a law is challenged and the legislative leadership is not, what options does the General Assembly have to defend the law?
b. Legislative Standing
In the summer of 2013, the General Assembly provided one answer to this question by enacting a new “legislative intervention” statute. Under this statute:
The Speaker of the House of Representatives and the President Pro Tempore of the Senate, as agents of the State, shall jointly have standing to intervene on behalf of the General Assembly as a party in any judicial proceeding challenging a North Carolina statute or provision of the North Carolina Constitution.
The statute requires such legislative intervention to proceed according to the North Carolina Rules of Civil Procedure. Under Rule 24(a)(1), “[u]pon timely application,” a court will permit anyone to intervene “[w]hen a statute confers an unconditional right to intervene.” That would appear to be the case under the new law. The language states that the legislative leadership “shall . . . have standing to intervene” in “any” case in which the constitutionality of state law is challenged. Thus, this would be an “unconditional right,” under Rule 24, and a state court would be required to permit intervention as a party. Accordingly, as intervening defendants, the Speaker of the House and President Pro Tempore of the Senate could engage independent counsel to defend the law.
In federal court, however, the same outcome is not mandated, due primarily to different procedural rules and constitutional standing requirements. Rule 24 of the Federal Rules of Civil Procedure does not mandate intervention as the result of a state law; rather, Rule 24(2) provides only permissive intervention at the discretion of the court “if a party’s claim is based on (A) a statute or executive order administered by the officer or agency; or (B) any regulation, order, requirement, or agreement issued or made under the statute or executive order.” As a result, for cases brought in federal court, such as a lawsuit initiated by the Department of Justice, the judge must grant the legislative leaders’ request to intervene before they may proceed.
Such an intervention in federal court likewise raises a second, more complex problem: Article III standing. Federal courts are not constitutionally empowered to settle disputes unless an “actual controversy” between two parties with judicially cognizable interests exists throughout the duration of a case. When the constitutionality of a state law is challenged in federal court, it is well settled that “a State has a cognizable interest ‘in the continued enforceability’ of its laws that is harmed by a judicial decision declaring the state law unconstitutional,” and that the State therefore has standing to appeal an adverse decision. A problem may arise, however, when a party other than the State intervenes to defend the constitutionality of a law and seeks to appeal an adverse decision, and courts must decide whether that party has a judicially cognizable interest in continuing the litigation.
In a recent case, Hollingsworth v. Perry, the United States Supreme Court took up this question. In Hollingsworth, California voters had passed a voter-led referendum, “Proposition 8,” amending the California constitution to define marriage as between a man and woman only. After the amendment passed, opponents of Proposition 8 filed suit in federal court, challenging the constitutionality of the law and naming as parties the executive officials responsible for enforcing its provisions. The Attorney General and Governor, apparently under the belief that the law was unconstitutional, declined to defend. As a result, the referendum’s official proponents under California law moved to intervene so that they might defend the amendment’s legality, and the federal district court allowed them to do so.
When the district court ruled the amendment unconstitutional and enjoined the state officials from enforcing the amendment, the state did not pursue an appeal, but the proponents did. In considering their standing to do so, the Ninth Circuit certified a question to the California Supreme Court and asked whether the official proponents were, under California law, able to assert the state’s interest in the validity of the law such that they would have standing to defend on appeal. The California Supreme Court responded that, under state law, the official proponents may assert the State’s interest in the validity of the law should the state officials charged with that duty refuse. The Ninth Circuit thus ruled that the proponents had standing and proceeded to decide the case on the merits.
The U.S. Supreme Court, however, rejected this argument, holding that because the official proponents had not been affected by the district court’s order, they had no particularized interest in appealing the judgment. In responding to the argument that the proponents were effectively representing the State’s interest in the validity of the law, the Court stated that, while states could designate agents to represent their interests, only state officials could be chosen as agents, not private parties.
This ruling has interesting implications for the prospect of legislative intervention in North Carolina. On the one hand, one could certainly contemplate factual circumstances in which the General Assembly’s role aligns with that of the proponents in Hollingsworth. The General Assembly could intervene under Rule 24 pursuant to the legislative intervention statute, and the executive officials could decline to defend. Under the general rationale of Hollingsworth, the General Assembly would not have standing to appeal because the outcome of the case would not affect its legal rights or obligations; in short, the legislative body would have no specific interest at stake.
On the other hand, the Hollingsworth majority’s provision for the State to identify its own agents, acting pursuant to their official capacity, would likely also encompass the General Assembly should it seek to intervene and appeal in a suit challenging a law’s validity. The language of the new statute likewise bolsters such a claim, as “state law may provide for other officials to speak for the State in federal court.” Thus, although the legislative intervention statute does not give an unconditional right for legislative officials to intervene at the federal level, it does provide a legal basis for the argument that, through this legislation, the State recognizes the General Assembly as an agent authorized to protect the state’s interest in maintaining the validity of its laws. As a result, the legislature’s best option for defending the constitutionality of a statute in the event of executive non-defense is likely intervention.
B. The Attorney General Chooses to Defend the Law
Heretofore, the primary discussion has focused on the Attorney General’s duty to defend, whether he or she must discharge such a duty, and what other branches of government can and must do should he or she refuse to do so. However, non-defense can come in many forms. This threat of inadequate defense poses what is perhaps an even more interesting legal question: what options are available to other government actors to assure an “adequate” defense when the Attorney General chooses to discharge his or her duty and defend a law?
At the outset, it is important to recognize an important shift in the legal issues analyzed under this inquiry. To this point, the inquiry has focused on the existence of the duties and powers of defense both in the Attorney General and in other government actors. It has been established that the Attorney General has both the power and the duty to represent the State’s interest, but also possible legal justifications for declining to discharge that duty. Likewise, in the Attorney General’s absence, the Governor and General Assembly have legal options at their disposal that allow them to defend the validity of a law.
The question from this point forward focuses on the exclusivity of the Attorney General’s duty to defend. In essence, once the Attorney General decides to defend, to what extent can other government actors shape the course of the State’s legal representation? While this question touches many of the issues already discussed, it approaches them in a different context and, in some cases, produces different answers.
1. The Governor
As discussed above, should the Attorney General decline to defend, section 147-17(a) grants the Governor the power to employ counsel other than the Attorney General to represent the State. But does the same power apply if the Attorney General chooses to defend? Section 147-17(a) reads in full:
No department, officer, agency, institution, commission, bureau or other organized activity of the State which receives support in whole or in part from the State shall employ any counsel, except with the approval of the Governor. The Governor shall give his approval only if the Attorney General has advised him, as provided in subsection (b) of this section, that it is impracticable for the Attorney General to render the legal services. In any case or proceeding, civil or criminal, in or before any court or agency of this State or any other state or the United States, or in any other matter in which the State of North Carolina is interested, the Governor may employ such special counsel as he may deem proper or necessary to represent the interest of the State, and may fix the compensation for their services.
While the statute does give the Governor the ability to hire outside counsel, the statute is arguably ambiguous. On the one hand, this power seems to be absolute. The broad language of the second half of the statute appears to bestow vast authority to hire special counsel “in any case . . . as he may deem proper or necessary.” On the other hand, the limitation that the Governor may only approve employment of counsel for any “organized activity” of the State if the Attorney General advises him of impracticability might be read to restrict the ability to hire counsel.
This was one of the primary issues at stake in Martin v. Thornburg. In that case, the Governor and the Council of State held different positions regarding the Council’s authority to approve a particular state lease.
As the internal conflict continued and the lease situation remained unresolved, the lessor filed suit against the State. The Governor then brought a declaratory action to determine “the rights and duties of the Governor and Attorney General in connection with lawsuits filed against the State.” The trial court held that section 147-17(a) limited the Governor’s ability to hire independent counsel, and that he could only do so when the Attorney General determined that it was impracticable for him to represent the State. On appeal, however, the North Carolina Supreme Court reversed, stating that, “construing the statute as a whole, we conclude that the last sentence of section 147-17(a) gives the Governor the unrestricted right to employ such special counsel as he may deem proper or necessary.”
This case has thus effectively settled the ability of the Governor to hire outside counsel to represent the State, whether in place of or in addition to the Attorney General. What is less settled is exactly how such outside counsel and the Attorney General might interact while simultaneously pursuing the State’s objectives. If the Governor is a party to the litigation, then the answer is perhaps more straightforward—the Governor’s counsel represents the Governor, and the Attorney General represents the State. If, however, the suit is against the State, and the Governor is not party to the litigation, the question essentially becomes, who is in charge of the litigation? Will the attorneys collaborate? Will they sign separate briefs, both purportedly on behalf of the state?
Although this question remains largely unanswered, and there appears to be no definitive legal rule, the North Carolina General Statutes offer at least some guidance. Just as section 147-17(a) authorizes the Governor and other parties to hire outside counsel in certain situations, section 147-17(d) provides:
In those instances where more than one counsel is providing legal representation, counsel, or service on a legal matter on behalf of a State client, the client shall designate in writing which of its legal counsel possesses final decision-making authority on behalf of the State client, and other co-counsel shall, consistent with the Rules of Professional Conduct, cooperate with such designated lead counsel.
At first glance, this statute would seem to give the Governor wide authority to denote his own counsel as lead counsel and grant this lawyer final decision-making authority in connection with the defense of a statute’s constitutionality. Such a holding would seemingly fit with the wide authority granted to the Governor to engage and set the compensation of counsel in “any proceeding.” However, when the Governor is not a party to the lawsuit but is instead hiring another lawyer to represent the State as party, it becomes even less clear who the “State client” is. Arguably, the Governor is not the client, because the attorney has not been engaged to represent him or her. Instead, the attorney has been engaged to represent the State.
Furthermore, the Attorney General has some authority to argue that the power vested in him or her at common law gives him or her the authority to direct the course of litigation, even if the Governor’s outside counsel may participate. Given his or her role “as primary legal officer of the state,” the Attorney General could conceivably argue that, even in the employment of outside counsel, he or she ultimately remains responsible for managing litigation.
One interesting case that may bolster such an assertion is Atkinson v. State, in which June St. Clair Atkinson, the Superintendent of the State Department of Public Instruction, a constitutional officer independently elected statewide, filed suit against the Governor. The North Carolina Constitution establishes the State Superintendent as the “Chief Administrative Officer” of the Department. In 2009, former Governor Bev Perdue decided to appoint a Chief Executive Officer to hold all responsibility for the management of the Department of Public Instruction. Atkinson claimed that such an appointment violated the state constitution, as it infringed upon her rights and obligations as the Chief Administrative Officer.
The trial court ultimately agreed with Atkinson, stating that the appointment of a Chief Executive Officer was “unconstitutional to the extent that it purports to limit the inherent constitutional authority of the duly elected State Superintendent of Public Instruction as Chief Administrative Officer of the State Board of Education.”  While there is no such constitutional language with respect to the Attorney General, given the statutory endowment of common law powers, the Atkinson case may bolster such a claim that the Attorney General is effectively “Chief Litigation Officer.” Thus, he or she is to be in charge of managing litigation, and any other attorney hired by the Governor or otherwise must ultimately submit to his or her direction.
At the same time, this seems to contradict the legal scheme set out in the section 147-17. If the Governor hires outside counsel to protect the State’s interest, it would likely do little good to have that counsel simply work at the direction of the Attorney General. This sets up a litigation conundrum that has yet to be fully played out in the context of conflict between the two government officers. The State may have two separate and distinct voices ostensibly pursuing the “same” result, but working independently to do so.
2. The General Assembly
The waters become even muddier if and when the legislative branch enters the fray. Recall that there is no clear legal authority for the General Assembly to hire its own counsel to represent the State, whether in addition to or in place of the Attorney General. This would arguably violate the arrangement contemplated by the Constitution, in which the power to defend the laws of the state rests with the executive branch. On the other hand, the Attorney General’s constitutional duties are merely “prescribed by law,” which gives the General Assembly wide latitude to legislate the inner workings of inter-branch relationships when it comes to the defense of state laws.
During the summer of 2014, the General Assembly took advantage of this apparent authority to clarify its relationship with the Attorney General, thereby adding another weapon to its legal arsenal for defending the constitutionality of the laws it passes, even when the Attorney General chooses to defend a law. Specifically, the General Assembly enacted two related statutory provisions of note.
The first new provision states:
Whenever the validity or constitutionality of an act of the General Assembly or a provision of the Constitution of North Carolina is the subject of an action in any court, if the General Assembly hires outside counsel to represent the General Assembly in connection with that action, the General Assembly shall be deemed to be a client of the Attorney General for purposes of that action as a matter of law.
Such an invocation of the attorney-client relationship accomplishes several things. First, for all actions challenging the constitutionality of a state law, the Attorney General would owe the General Assembly all of the relevant professional duties an attorney owes a client under the Rules of Professional Conduct. Perhaps most importantly among those is Rule 1.2, which requires that an attorney allocate authority such that the client sets the objectives of the representation, while the attorney retains reasonable authority over the means. As such, under the new provision, the Attorney General could not refuse to take an action the General Assembly directed him or her to take, such as appealing a case. Such refusal, even under the auspices of one of the available arguments for declining defense, may constitute a breach of the Attorney General’s broader ethical duties as a lawyer.
Furthermore, as discussed above, section 147-17(d) allows a “State client” who has employed a lawyer in addition to the General Assembly to direct which counsel will have final decision-making authority. Arguably, under the new statute, by taking on “client” status by operation of law when the constitutionality of a statute is challenged, the General Assembly could hire outside counsel and direct that counsel to have final decision-making authority.
However, instead of leaving this argument to fall under the somewhat unclear language of section 147-17(d), the General Assembly took up a second, related provision that distinctly establishes this “lead counsel” authority. Under this new provision, whenever the General Assembly hires outside counsel through its leadership, it will have the authority to designate that counsel as “lead counsel,” who will “possess all final decision-making authority with respect to the representation.” The Attorney General, acting as “co-counsel,” is directed to coordinate with the lead counsel consistent with the Rules of Professional Conduct.
Although these new statutory provisions give the General Assembly significantly greater authority to shape constitutional litigation than it has enjoyed in the past, such laws certainly are not immune to criticism. Perhaps most notably, they invite a number of constitutional questions, the foremost being whether such laws violate the separation of powers provided for in the North Carolina Constitution. Because the legislative language is so new, it is unclear whether it might be challenged and what the outcome of such a challenge would be.
Even without these new provisions, however, the General Assembly still has an option for ensuring an “adequate” defense of state laws as a result of the intervention statute. Although this law does not raise the same kinds of separation of powers issues raised by the new provisions, drawing the line between representing the General Assembly as a party and representing the State is nevertheless an imperfect process, which becomes exceedingly relevant when revisiting the Article III standing issue in the event the Attorney General does, in fact, defend a law. Recall that when the Attorney General declines to defend, Hollingsworth suggests that legislative leaders, acting in their official capacity, may serve as the agents of the State and have the right to appeal an adverse ruling on the constitutionality of a state law. Arguably, this dynamic changes when the Attorney General is defending the law. When the General Assembly is no longer the lone “agent” of the State, the legislative branch, even acting in its official capacity, has no interest to vindicate. Like the proponents in Hollingsworth, the General Assembly is unaffected by the outcome of the litigation with respect to their rights and obligations. As Justice Roberts puts it, the General Assembly will not have been “ordered . . . to do or refrain from doing anything.” Courts will excuse this “shortcoming” when the executive declines to defend, primarily on the grounds that the State should be able to have some official party to represent it. However, the General Assembly arguably has no judicially cognizable interest separate and apart from the State’s when the State’s rightful legal agent has chosen to appeal. Like the Proposition 8 proponents, legislators are no longer positioned to represent the State’s interest.
The Voter I.D. litigation once again is helpful as a hypothetical example. Imagine, for instance, that Attorney General Cooper has decided to defend the law, but the General Assembly has intervened as a party under the legislative intervention statute because the legislative leadership considered the Attorney General’s defense to be inadequate. The federal district court rules that the law is unconstitutional. Both the legislative leaders, now parties in the suit, and the State, acting through the Attorney General, appeal. The State certainly has an interest in the continued enforcement of its laws, and the Attorney General’s standing, as representative of the State, is unquestioned. But is the General Assembly still an “agent” of the State such that it might also appeal as an interested party? Asked another way, can the General Assembly’s interest in the validity of the law be separate and distinct from the State’s?
Arguably, the “official” vs. “private” party distinction breaks down when multiple public officials are seeking to establish standing by contending that they represent the State’s interest. Likewise, state law on the matter is not entirely determinative. As a result, because the interest of the State is already represented by an executive official (with arguably exclusive legal authority to do so), the General Assembly, even acting in its official capacity, has no judicially cognizable interest in the litigation, despite the fact that state law gives them such standing in state court. Like the proponents of Proposition 8, its role was to pass the legislation, and a court order restraining the enforcement of a statute does not restrict its legal rights.
The standing issue aside, the practical realities of waging a defense of the State’s laws when two different branches of government are represented has the potential for conflict. To complicate matters further, recall that the Governor may hire independent counsel to represent the interests of the State. The Governor’s counsel might add his or her own constitutional defenses, some consistent with that of governmental colleagues, some in contradiction. This is, perhaps, the full measure of convolution—a multiplicity of officials across two separate branches of government claiming to represent the State’s interests before the third. Is this really the situation the law contemplates?
The General Assembly’s recent actions help clarify matters to some degree, but questions still remain. Even if the General Assembly can ensure representation without intervening by triggering client status, the degree to which an Attorney General will cooperate will remain to be seen. Moreover, significant constitutional questions suggest that such actions may be subject to challenge.
To a certain extent, the Voter I.D. litigation has and will continue to serve as a guide for how these relationships might function. Despite his public comments regarding the bill, Attorney General Cooper acknowledged that it is his office’s duty to defend the law and maintained that his office could adequately defend the State’s interests notwithstanding his own personal disagreements, and that litigation is ongoing. Nevertheless, Governor McCrory hired independent counsel to represent the State, arguing that Cooper’s comments had undermined his confidence that the State was adequately represented. In the meantime, the General Assembly has refrained from intervening as a party but has hired its own attorneys to advise it throughout the litigation and to work with the Attorney General’s office. Thus, while the waters remain largely uncharted, further opportunities for disagreement and non-defense may yield greater guidance in the near future.
The “ancient and honorable office” of Attorney General has come a long way from its origins as the personal representative of the English Crown. The office has seen significant development in North Carolina alone. Yet, even so, the scope of the powers and duties of the state’s modern Attorney General remain somewhat ill-defined with respect to the responsibility to defend the validity of state laws. The statutory duty to defend is possibly obscured by duties held at common law. Those taking the oath of office swear to protect the laws of the United States and of North Carolina, yet both the constitution and the laws of the state provide no direction for when they might conflict. The suggested framework for identifying conflict and incorporating traditional notions of executive power may provide some help, but a vast “zone of twilight” remains. Likewise, the ability of other government actors to respond remains a sea of uncertainty. While this article has shed some light on the parameters of gubernatorial and legislative authority to defend the laws of the state, in truth, their ability to do so is certainly not without question, if not legally, then practically.
What, then, can be done? Some have suggested moving constitutional defense out of the Attorney General’s purview altogether and placing the responsibility in the hands of the legislature. Similarly, continued intra-governmental conflict of this nature may cause the public to revisit eliminating the divided executive and placing the office of Attorney General under the umbrella of the Governor. Still others may argue that confusion has its virtues, and that a system emphasizing the separation of powers and competing interests is actually best positioned to ensure a robust legal defense of the state’s laws.
What is perhaps less radical, but wholly necessary, is a clarifying response. When the State lacks a clear, consistent voice, the defense of its laws is in jeopardy. The General Assembly’s actions in 2014 clarified matters to some extent, but the reach of the new laws, especially its new ability to appoint a lead counsel, raises more questions even as it answers others. Moreover, while these heady legal questions deserve thoughtful consideration, one must not forget the practical challenges associated with intra-governmentally coordinated legal work. At the end of the day, words must be written and briefs filed; strategies crafted and hearings held. Whoever manages to assert final decision-making authority will truly wield significant power.
These practical realities thus illuminate both the importance and the limits of the law in this area; it defines respective government actors’ rights and responsibilities, but is also ultimately shaped by those actors as they attempt to put it into practice. This is a difficult endeavor, but incremental legislative clarification and a commitment to reasonable coordination between the Attorney General and other government actors will go a long way in assuring an adequate defense of the constitutionality of the State’s laws.
John E. Harris**
* © 2014 John E. Harris.
** This piece certainly could not have happened on my own, and a number of people deserve special thanks for their role in its completion. First, a special thank you to my wife, Kerry Anne, whose unending support is truly remarkable. I must also thank Charlie Loeser—between thoughtful editing and nearly instantaneous responses to my late night emails, I could not have asked for a better editor. Likewise, a special thanks to the full Editorial Board of the North Carolina Law Review for their efforts in preparing this piece for publication. Finally, a special thanks to those practitioners who have faced the challenges discussed in this piece and who took the time out of their busy schedules to discuss the issues with me—your ruminations were invaluable.