1/12/2008

Va. Attorney General thinks Virginia Law constitutional....Duh....

Friday afternoon the blogsphere, at least from the dissenters, was agog with the breaking news that the Virginia Attorney General filed a brief supporting a motion to intervene and defend the constitutionality of the Virginia code. The motion states, "The Attorney General has the obligation to defend the constitutionality of all Virginia statutes, regulations, and policies." The brief presents the argument supporting the constitutionality of the Virginia law in the particular case being presented. The brief gives supports the CANA (Convocation of Anglicans in North America) argument, but because the motion and the brief are not about CANA but about the constitutionality of the Virginia code, it concludes that "For the reasons stated above, regardless of how this Court interprets § 57-9, the statute is constitutional."

If the judge accepts the motion and agrees with the brief it seems to me the setup for an appeal is in place. What is to prevent that judgment being appealed to the Federal courts and the Virginia code being tested on a federal level? At the same time CANA's position still has to be upheld by court, not by the Va. AG anyway, since this motion and brief is for the sole purpose of defending the constitutionality of the Virginia statues and is not the final argument for the position taken by CANA.

If the judge is not convinced by the brief, or if he does not accept the motion to intervene the Attorney General's support for the CANA position is moot.

The Attorney General specifically says, "Pursuant to Virginia Supreme Court Rule 3.14, the Commonwealth of Virginia, upon relation of Robert F. McDonnell in his official capacity as Attorney General of the Commonwealth, moves to intervene in this matter for the limited purpose of defending the constitutionality of Virginia Code § 57-9 (“§ 57-9”).

BabyBlue's headline on the posting of the brief and motion reads, "Friday, January 11, 2008: BREAKING NEWS: VIRGINIA ATTORNEY GENERAL SIDES WITH VIRGINIA CONGREGATIONS THAT VOTED TO SEPARATE FROM THE EPISCOPAL CHURCH"

This is a reach. What the Virginia Attorney General holds concerning the specifics of CANA's position is a different matter than his required duty to defend the constitutionality of Virginia law. This brief and motion is only a middle step, along with a flood of other motions and briefs to be presented to the Judge.

It's too soon for joy or sorrow, other than to note that if the Virginia Attorney General were to take sides in an argument between two parties for the purpose of furthering that party's position, rather than defending the validity of the law, he would need to identify himself as a lawyer for one or the other particular party. One hopes the Attorney General is not siding with anyone, but rather giving an opinion about the law. It is for the lawyers for CANA to take sides.

At least that is how it seems to this non-lawyer.


11 comments:

  1. Viriato da Silva12/1/08 5:47 PM

    "At least that is how it seems to this non-lawyer."

    Well, to this lawyer, your analysis seems completely correct.

    FWIW.

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  2. even if the VA AG's motion wins the day--which he is required to make; it's his job not his discretion--that doesn't mean the disserters get to steal the property; there is the further question of interpreting and applying that law.

    and, if one believes as i do that the law in question is contrary to the first amendment and binding supreme court precedent on religious liberty, of course if the law is upheld by the VA courts, and the Episcopal Church loses, we can expect an appeal to SCOTUS to follow.

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  3. It may be one one brief in a flood of briefs, but it is an important brief in that flood. One which demands more attention because it is the VA AG.

    FWIW

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  4. Virginia Gal13/1/08 2:31 AM

    Some additional information on this highly unusual move - rare, because the case is still at the circuit court level.

    From The Washington Post:
    State Files to Join Episcopal Case
    "...(Virginia AG Robert F.)McDonnell's office has another connection to this issue -- his deputy, former state senator William C. Mims (R), who has been a member of another Episcopal church that broke away from the national church over the same issues of how to understand Scripture as it pertains to homosexuality. Mims prompted controversy and much debate in 2005 when he -- as a senator -- proposed a bill that would have explicitly allowed congregants who leave their denominations to keep their land. The measure failed, and opponents said it was an inappropriate insertion of government into church affairs."

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  5. Robert F. McDonnell, the Va AG, is a conservative Roman Catholic. He is also on the board of Falwell's Regent University. It would be interesting to know if he would have filed this motion had it, say, concerned a liberal RC congregation seeking to affiliate itself with TEC. Or might it be that McDonnell, a young enough man to have further political ambition, is playing to his base?

    The Washington Post reports that "McDonnell's office has another connection to this issue -- his deputy, former state senator William C. Mims (R), who has been a member of another Episcopal church that broke away from the national church over the same issues of how to understand Scripture as it pertains to homosexuality. Mims prompted controversy and much debate in 2005 when he -- as a senator -- proposed a bill that would have explicitly allowed congregants who leave their denominations to keep their land. The measure failed, and opponents said it was an inappropriate insertion of government into church affairs."

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  6. "It may be one one brief in a flood of briefs, but it is an important brief in that flood. One which demands more attention because it is the VA AG."

    Actually not. Courts are supposed to be persuaded by the logic of the arguments before them -- not who the person making the argument is. The VA AG's position was already determined before the suit was even filed. This is a VA statute and his job is to defend the constitutionality of the statute. His argument might be legal nonsense, but he is obligated to make one.

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  7. Well Ruidh, I suppose if you have such low respect for the bar in the Commonwealth of Virginia then an AG might produce "might be legal nonsense." Let's give the benefit of the doubt and say the AG gained his position because the election process worked and those who were off their rockers were weeded out. Thus in the flood of brief with all sorts of opinions, I'd suspect the AG just might have a little more "clout."

    Yes, the judge still must make his ruling. However, he'll probably read the transcripts, read various briefs, read past decisions and I bet the AG might hold a little more clout than if 'Viriato da Silva' wrote one.

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  8. It never ceases to amaze me how the passion of conviction can blind people to simple realities. The way some have reacted to the AG's filing as if it will "tip" the case their way seems to fit with this tendency. As others have pointed out, this filing is an ordinary part of an AG's work, whenever a state law is or is about to be challenged on constitutional grounds. The fact that it comes from the AG means precisely nothing more than that the AG is doing his job -- which he would have to do even if he inwardly agreed the law was unconstitutional: he is a part of the executive branch, not the judiciary, and it isn't his job to make determinations as to constitutionality.

    Personally, it has seemed to me since the case began that by forcing a judge to tell TEC that it can't govern itself, and determine whether or not it has made a formal division in itself, necessarily entangles the judge in making a decision about who is in charge of the church apart from its own governance as enshrined in its constitution and canons. He has to tell TEC it is divided when TEC says it isn't.

    The other thing that bakes my cake is the continued lack of understanding about the difference between "neutral principles" and "hierarchical church." As SCOTUS has made clear, the principles of a "hierarchical church" become "neutral principles" once they are formally embodied in the statutes of the church. The "trust" (not "ownership") of church property was always part of TEC church law (based on a Henrician statute), and was clarified (not introduced) by the amendments in 1979. The hierarchical trusteeship of property in TEC is thus a neutral principle.

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  9. Mark - apparently the AG said: "Pursuant to Virginia Supreme Court Rule 3.14, the Commonwealth of Virginia, upon relation of Robert F. McDonnell in his official capacity as Attorney General of the Commonwealth, moves to intervene in this matter for the limited purpose of defending the constitutionality of Virginia Code § 57-9 (“§ 57-9”)." which means that he is only becoming involved for one purpose only. So when you say: "One hopes the Attorney General is not siding with anyone" you are implying that the plain words of the AG cannot be trusted. Do you really mean to suggest he is being duplicitous.

    Furthermore, I am disappointed that you are already considering grounds for an appeal in the event the judge agrees with the brief. It seems that you are suggesting PECUSA use its vastly greater financial resources to simply wear down the Virginian churches until there is nothing left to defend. Is this waging reconciliation or a war of attrition? May the Lord have mercy.

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  10. Mark,
    While the AG has a duty to defend the constitutionality of a statute, it is unusual for the AG to intervene at the trial court level. Usually the AG doesn't get involved until after the trial court has decided a constitutional issue and one of the parties appeals.

    On the other hand, this is a high profile case, and I believe (I haven't read any of the filings) that the parties have raised the constitutional issues and given it some prominence. In that case, it would not be unusual for the AG to intervene.

    Politics or not? I would hope your analysis is right, that the AG is merely acting in accordance with his duties.

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  11. This is what's know as "pandering to the base."

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