I am posting a comment from the comments section of one of my posts on the county clerk controversy that gets to some of the serious issues involved. It was a substantive post, so I thought I would bring it and my response out on the main blog:
There are two types of duties that State Officials possess. The first is a ministerial duty, and the second is a discretionary duty. The Attorney General in Kentucky (and all other states to the best of my knowledge) has the discretion to appeal a trial court's finding that a law is unconstitutional. There is no affirmative constitutional duty to appeal such a finding if the Attorney General, in his opinion, believes the appeal will fail or that the law is otherwise repugnant or unconstitutional. There is a duty to defend the law at the trial court level (before Judge Heyburn in this matter) which the Attorney General did in this case.
A ministerial duty is a duty in which there is no room for discretion. The most common example in law school is, ironically enough, filling out a form or putting a seal on a piece of paper. Issuing a marriage license is a ministerial duty.
What the LEO was attempting (albeit awkwardly) to say is that it is a false equivocation to compare a clerk's failure to perform a ministerial act with the Attorney General's lawful and discretionary choice not to appeal a finding that the marriage amendment violated the federal constitution.
As someone who has published logic textbooks, you are obviously very capable and very good at critical thinking. Therefore, I find it impossible to believe that you are unable to grasp the distinction between ministerial and discretionary acts. As someone who leans left on the gay marriage issue, I will freely admit that Kennedy's opinion was lacking in solid jurisprudence.
Can you not do me the same courtesy and admit that the comparison between the clerks refusing to issue same-sex marriage licenses and Conway's refusal to appeal is misleading at best and cynical at worst?My response:
I am certainly not in a position to tell you what it is possible or impossible for you to believe, but the distinction you point to is not one that has been pointed out to me. And for that reason, I appreciate you pointing it out. It is certainly relevant to the discussion.
I have no problem with the distinction per se, but it seems to me that it doesn't necessarily resolve the issue.
First, in regard to Conway's discretionary duty, you say that he would have the discretion whether to appeal the case. I don't deny that. But even you seem to think that that discretion is subject to some kind of criteria. You set them forth as whether he thinks "the appeal will fail or that the law is otherwise repugnant or unconstitutional." I would be curious to know where you get these criteria. Are they in the Kentucky Constitution? Is there some case law that establishes these criteria as judicial doctrine on these issues? I'm not accusing you of making them up, but I really don't know by what authority you assert them and would like to know.
But for argument's sake, let's assume them. On the first criterion--whether he thinks an appeal will fail--seems a pretty weak one to me. Whether a case is likely or unlikely to be won seems like a rather subjective criterion. In all cases there is a winner and a loser--and the percentage breakdown is obviously about 50/50. I imagine in a lot of those cases the parties have some idea of the probability of winning and losing. I am just wondering what happens if all the
In fact, doesn't that criterion amount to a self-fulfilling prophecy? The refusal to defend these laws may be based on a subjective judgment of probability of an appeal being successful, but such a refusal will most certainly affect the probability that such an appeal would be unsuccessful. If those ostensibly responsible for defending these laws decide not to defend them, doesn't that increase the probability that their side in the case will lose? And won't the spectacle of multiple instances of this further increase that probability? In fact, isn't this exactly what happened on the marriage issue? Whatever the chances an appeal would not be successful, the refusal to file it would increase the chances of its not being successful, and it seems to me the AG's job is to increase the chances where he has the power to do so. And he could have done this by filing an appeal.
Not that it is dispositive here, but I just wonder how this would work out in a military context. What happens when your chances of losing are high? You just give up? I can think of a number of battles that would have turned out very differently had this criterion been observed.
Conway certainly did say that Heyburn was right and that "these laws will not likely survive upon appeal" and that he would not "waste the resources of the Office of the Attorney General pursuing a case we are unlikely to win." But there are several things about this that make it a pretty weak excuse.
The first is the whole financial reason he gives. For one thing, what I want to know is how much more the state spent defending the law with outside counsel than it would have if he had done his job.
And secondly, I want to know how our showing up unexpectedly at several of the meetings between Conway's junior attorneys and Heyburn (Conway himself didn't bother to show up for any of the meetings) during the time he was purportedly actively defending the law--meetings in which his staff clearly had been directed to tred water affected Conway's decision--affect his decision. Even Judge Heyburn seemed to get impatient with them, and in one case clearly expected them to ask for a stay, and when they just sat there, looking at each other and shrugging their shoulders, Heyburn just did it himself--doing their job for them.
It was pretty pitiful.
Then there was Conway's brief in the original case, which a number of attorneys I talked to thought was simply badly done. Several thought they were intentionally bad. Even one attorney supportive of the plaintiff told a reporter that he thought the briefs signaled that Conway was opposed to his own case.
I'm trying to figure out how pretending to defend a law but actively undermining your own case can be justified under any circumstances.
I'm not saying that he couldn't do what he did: Obviously he could because he did. I'm saying he shouldn't have done it, partly because his reasons for not doing his discretionary duty were not convincing, and partly because he was serving in an office he campaigned for on a platform that included opposition to same-sex marriage. It wasn't like he didn't know what he was expected to defend going into his position.
In regard to his ministerial duty, I would again ask for the basis upon which you make this distinction and why it applies to county clerks and not attorneys general. Why, in other words, are filling out forms and putting seals on documents ministerial and not discretionary? It's not a part of their oath of office (like Jack's obligation to defend the Kentucky Constitution was), so what is it?
And, again, granting again your assumption (unestablished so far), is this ministerial duty to be discharged under all circumstances? To use an admittedly extreme example, if I am a clerk in Germany in the late 1930s and early 1940s, am I morally bound to sign the documents that are involved in sending Jews to the concentration camps? Again, I admit this is extreme, but it does establish that there is some point at which a person is relieved of his obligation to perform his ministerial duties, and the question therefore becomes on which side of the line violating your religious convictions falls (However far away they may may not be from sending people to concentration camps on the scale of moral terpitude).
You simply assume that it falls on one side of the line, but you do not say why.You can read the original article and the rest of the comments here.
I appreciate your admission about Kennedy's opinion and the intelligent discussion starter on this issue. And unless you have an objection, I'm going to post your comment and my response as a separate post on the blog tonight because I think your points worthy of more attention.