GOLDMAN: Attorney General Herring avoids answering my same-sex lawsuit question

Posted at 2:47 PM, Jan 23, 2014
and last updated 2014-01-23 14:47:42-05

RICHMOND, Va. – Attorney General Mark Herring avoided answering the legal question poised earlier by this column.

My legal concern is straight-forwarded.

Through his office’s spokesman, Mr. Herring declared earlier today that he will “side with the plaintiffs [now suing federal court in Norfolk] … seeking to have the ban [on same sex marriages in Virginia] declared unconstitutional.” He confirmed this position in a subsequent press conference.

My question is simple.

Where does he find the power to join the side in court arguing against a state law, in this case a constitutional ban enacted by his continuing client, the state of Virginia?

State law gives him the right to refuse to defend a law should he believe it unconstitutional. Refusing to defend is one thing, joining the courtroom side demanding the law be overturned is quite another.

Where does he find this power especially since former Attorney General Ken Cuccinelli previously entered the AG’s Office presence in defense of the law? Taking a position adverse to your continuing client under these circumstances especially raises very serious issues.

Let’s do a logical analysis as in law school.

(1) Virginia’s constitution is clear on the Attorney General’s legal role. The pertinent parts contained in Article V read as follows:

Section 15. Attorney General.

An attorney general … shall perform such duties and receive such compensation as may be prescribed by law, which compensation shall neither be increased nor diminished during the period for which he shall have been elected. (Emphasis added)

That’s right, contrary to popular opinion, the AG has no real power except as granted by the state legislature. At his press conference, Mr. Herring asserted a broad, constitutional authority to join suits to invalidate state laws he and his team believe are unconstitutional.

This power surely doesn’t come from the Virginia Constitution.

(2) The duties “prescribed by law” are basically found in Virginia Code Section 2.2- 500 et. seq. The AG’s courtroom role in defending state law is essentially detailed therein. Mr. Herring is given the right to refuse to defend a law provided he takes appropriate steps to insure his client’s – the state – interests are adequately represented in such courtroom challenge.

(3) HOWEVER: There is no specific grant regarding the power Mr. Herring now claims. Yet his assertion is a very significant leap in legal theory and widely expands the AG’s authority if correct. -.


By his own admission, Mr. Herring admits the state is the attorney general’s client. Whether he likes it or not, the same-sex ban is the law, adopted by the people in a 2006 referendum.

A lawyer cannot appear in court in an adverse position to his or her client ESPECIALLY after he took the opposite view in the same court challenge albeit under a different attorney general.

This is necessary to preserve both the integrity of the process and the attorney/client relationship in my view.

The Constitutional makes plain the AG’s power is not inherent, but based on specific grant. By refusing to defend the constitutional ban, Herring sends his legal message to the Court. But jumping the shark to the other side and asserting a power not found in law sends the wrong message to his client and the people.

This sets a questionable standard with more risk than reward to the people.

Paul Goldman is in no way affiliated with WTVR. His comments are his own, and do not reflect the views of WTVR or any related entity. Neither WTVR nor any of its employees or agents participated in any way with the preparation of Mr. Goldman’s comments.