November 4, 2015
As originally published in the New Hampshire Union Leader
The Attorney General’s refusal to defend state law, if allowed to stand, would rewrite state law and create an untenable secondary veto power in an appointed office. The “duty to defend” should itself be defended. The issues involved have little to do with one additional education funding lawsuit and everything to do with the balance of powers in state government.
Two weeks ago, the Attorney General Joe Foster’s office announced that it would refuse to defend the state law on education in the face of a challenge by the city of Dover. Dover is challenging the limits on the rate of increase in a town’s aid — limits that have existed since the law, co-sponsored by then- Sen. Joe Foster, was passed in 2008.
Foster told the press last week that his office “could not find a defense we felt was meritorious.” That this sentiment is the complete opposite of the opinion he had as a state senator is curious, but not the point of the current column.
The biggest problem for state government is not whether the defense of the law is good or mediocre. It matters not whether you supported extending the law or repealing it. This is about the structure of state government and whether we want to grant the Attorney General a passive veto over laws.
Legal scholars refer to a state official’s obligation to defend state statute as the “duty to defend.” Some states vest a duty to defend, some imply, and others limit it. New Hampshire’s law is fairly clear.
The section of state law that describes the Attorney General’s “Powers and Duties as State’s Attorney” requires “The attorney general shall act as attorney for the state in all criminal and civil cases in the supreme court in which the state is interested.” The use of the word shall creates a duty.
On the supposition that everyone is entitled to a lawyer, the AG is designated as the State’s attorney. Just as criminals are entitled to a defense even if guilty, the duly passed laws of the state are entitled to a defense even if the lawyer so charged is not enamored of the law.
Attorneys general have very rarely refused to defend state law across the country even if states where the office is specifically empowered to do so. Because our law is so clear, a Yale Law Journal compilation of all such refusals finds no precedent whatsoever for this in New Hampshire.
It seems clear at this point that the Attorney General is acting beyond his brief, apparently in violation of state law. But what of it? Why should we be concerned?
First and foremost, the law must be defended. The State as an organization or institution is and must be subject to lawsuits. But it is entitled to a lawyer acting as the State’s attorney. Our rules and regulation — state statutes — create and fund an office that is assigned that task.
If the state official assigned that task refuses to undertake it — and that is precisely what has happened in this case — another lawyer should be found to take the job. For the time being, leave aside the question of whether or not an official should be allowed to refuse a job duty defined by law and still keep his or her job.
If the State’s attorney declines to represent the state — as required by statute — and no alternate provision is made, the state and its law is then denied a defense.
If the state’s attorney were allowed to refuse his duty to defend and no alternate provided, it would allow that official the opportunity to effectively negate state laws. His refusal, his judgment would be the equivalent of a veto of legislation without any ability to override that veto.
If he only refuses to do his duty in cases where he has constitutional concerns then we are allowing him to perform the function normally assigned to the Supreme Court despite being in the executive branch.
It has become commonplace for state attorneys general to seek to enlarge their power and set themselves apart from the rest of the executive branch but this trend should be resisted.
The current kerfuffle is not about one city’s quarrel with education funding. The question at stake is whether the Attorney General may nullify our “duty to defend” law and create for the office a shadow veto to make him half-governor and a shadow judicial review to make himself half-Supreme court.