What is the Proper Response for Govt. Employees Not Doing Something they Find Abhorrent?

[lawrocket 3]

Many moons ago, there was a thread regarding a pharmacist who, for personal reasons, refused to fill a person's prescription for birth control. In Texas, the pharmacists lost their licenses - rightfully so, says I. They've got a job to do, and they are supposed to do it.

Yet, in the last couple of weeks, we have some incidents of a government employee not performing the job that they were hired - or even elected - to do.

1) Jesse White - the Illinois Secretary of State - has thus far refused to certify Burris. "Although I have respect for former Attorney General Roland Burris, because of the current cloud of controversy surrounding the Governor, I cannot accept" his nomination.

2) Jerry Brown - the California Attorney General - recently filed a document with the Cal Supreme Court that he will not defend California in the Prop 8 controversy, stating "Proposition 8 must be invalidated."

Mind you, from a political standpoint, I stand 100% behind these guys. But from a pragmatic standpoint, this is repugnant! We've got the IL Sec of State saying - apparently with no authority to back him up - that he will not do his job in this circumstance. We've got the Cali AG - whose job is to represent the State of California and only the State of California - saying that he won't take this case.

I gotta say, "What the fuck?" You've got government officials publically stating that they won't do their jobs because they don't want to. Hey, I agree that Prop 8 was bad. But if my JOB is to defend it, I'm gonna DO MY JOB AND DEFEND IT. Or, I'm going to say, "I've got a bunch of attorneys here who can defend this. I'll keep my hands off of it and leave it to them."

But he didn't. He said, "We aren't fighting this."

Imagine Jesse White saying, "I don't like John Doe. I think he's an asshole. So I think I'll just not sign his candidacy documents."

Recall the "Saturday Night Massacre" - the famed firing by Nixon of Archibald Cox? He told his Attorney General to fire the special prosecutor. Eliot Richardson said, "No" and resigned in protest. Then Nixon ordered Ruckleshaus to fire Cox, and Ruckleshaus refused and resigned in protest. The job fell to Robert Bork (Solicitor General) who intended to decline and resign, but complied after Richardson convinced him to stay on,

That's what integrity used to be. Integrity meant either doign your job or getting out of the way. I don't think it's the job of a Secretary of State to refuse to sign a certificate because he doesn't like the governor. I KNOW it's not the job of a the California AG to play dead.

I'll reiterate my stance on a number of things. I often times may, politically and philosophically, agree with the substantive outcome of the decisions of policy makers, courts, politicians, etc. However, if shenanigans are the reason for those outcomes, the ends do not justify the means, for the same means can be used to reach outcomes that I find bad.

I'd rather do something the right way and not get what I desire than get what I desire through nefarious means. I hope it's not just me that feels this way.

My wife is hotter than your wife.

[nerdgirl 0]

I tend to agree with you in the most general of cases.

Goodness knows I’ve had to represent positions with which I don’t agree … guess what: in the real world, it’s not always about *me* ... or any-you either.

Is the person being asked/refusing to do something illegal or not? Or is it a disagreement with policy choices?

Is the person a civil servant, political appointee, elected or ‘none of the above’? It does matter.

Is the position intended as administrative, analytical, regulatory, policy-making, or 'none of the above'?

Refusing to do something, e.g., being a whistle-blower, can be characteristic of higher integrity ... & too often has more negative repercussions for the individual doing the whistle-blowing unfortunately.

VR/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[lawrocket 3]

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Is the person being asked/refusing to do something illegal or not? Or is it a disagreement with policy choices?

Neither Brown nor White have advanced the argument that they would have to do somethign illegal. Brown commented that he thinks the only argument he has does not pass Constitutional muster. But that's his conclusion - and he is CLEARLY not the sole authority on the subject. DO YOUR JOB!

In both cases it appears to be a matter of personal choice. In both cases, their jobs are not a matter of personal choices but of a duty to do their jobs.

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Is the person a civil servant, political appointee, elected or ‘none of the above’? It does matter.

True - but to a limited extent. A civil servant has ministerial duties with few discretionary functions about whether to do or not do something. For example, if a person pays a fee, that person may gain entry into a national park. The ranger cannot say, "I don't want this person here" without a directive from policymakers. This is essentially what White did. his job of certification looks, for all intents and purposes, to be ministerial in nature. Rangers, however, can choose to let someone off with a warning, etc., if witnessing a violation - a discretionary function.

What about a political appointee? Yes, those people may have more discretion. But appointees must also operate within the rules of the agency. The deputy undersecretary of transportation cannot merely decide, "I don't like this proposd regulation. Thus, I'll can it without public comment." Gee, when the EPA does stuff like that, it's called "abuse." When the Sec. of State does it, it is admirable.

An elected official? Both White and Brown (I hjadn't thought of the color angles) are elected officials. Nevertheless, they are elected to do their jobs! It's much like a governor saying, "I veto this." Then the veto being overriden. Then the Governor saying, "I still won't enforce it."

That is actually a close fit to the Brown situation. I presonally agree with his argument. But - there is plenty of room for argument on it. He concluded that the court was right in conferring "suspect class" status, and that the vote on Prop 8 was insufficient for a valid law. Well, it is not that black and white. It is HIS job to defend the state .

What Brown did was much like a public defender submitting a brief saying, "Client denies it, but I think he's guilty. Thus, client will not be defended." I have SERIOUS issues with that - not just from a politican, but from a lawyer.

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Is the position intended as administrative, analytical, regulatory, policy-making, or 'none of the above'?

Administrative? Absolutely, in many respects. That means no discretion.
Analytical? For Brown, most certainly. For White? I dunno.
Regulatory? Absolutely. What if the regulator is subjective reagrding whom he or she regulates? Usually, that's corruption.
Policy-making? For Brown - no. He is policy enforcement. For White? In this aspect, it is ministerial. He is declaring his personal policy.

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Refusing to do something, e.g., being a whistle-blower, can be characteristic of higher integrity

Absolutely. Refusing to do something, i.e., "The governor is corrupt, and nobody he appoints will get my signature" is not indicative of high integrity.

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too often has more negative repercussions for the individual doing the whistle-blowing unfortunately

Absolutely! And there are rules that protect a whistleblower. What if nerdgirl blows the whistle on a supervisor demanding that she spoliate data that doesn't support his wishes. Then the head of the investigating agency decides, "Nerdgirl. I don't like her. She makes me look bad. I will not send the conclusions of this report confirming her claims to higher. So that we don't get an accusation of 'cover up' I am gonna go public with my decision."

Which is what White did. And this is pretty sinister, if you think about it. White says he has pure motivations. Brown says he has pure motivations. Everyone who does stuff like this claims pure motivations.

After all, they know what's best for everyone...

My wife is hotter than your wife.

[Andrewwhyte 1]

As an officer of the court you (nor the AG) may not present a scenario of fact you know to be false. Are you similarly prohibited from arguing a legal scenario you believe to be invalid? It seems to me that to do so would be to attempt to subvert the constitution.
If the AG truly believes that the amendment is not constitutionally valid then he has an obligation not to defend it. This does not thwart the will of the people as there is contradiction in the expressed will of the people: the constitution as written and the proposed amendment.

[Andy9o8 2]

Jerry, as you know, in most US jurisdictions there is a type of lawsuit called a "mandamus action", in which a citizen petitions the court to issue an injunction to compel a public official to perform an official act which he has a duty, but refuses, to perform. So why not a mandamus action in cases like this? In fact, if Burris was my client, I might advise him to do just that: file a mandamus action against the Secy of State seeking to compel him to certify the appointment.

[lawrocket 3]

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As an officer of the court you (nor the AG) may not present a scenario of fact you know to be false.

What would be a "false fact" that is being presented?

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Are you similarly prohibited from arguing a legal scenario you believe to be invalid?

Depends. I cannot lie to the court, nor provide "untruths" or "white lies." In fact, I have kept myself clean by refusing to do so, and dismissing causes of action that I can't make stick.

The point is "believe to be invalid." Brown stated a few things:
1) Prop 8 was a properly enacted Amendment to the California Constitution;
2) Prop 8 raises no question with separation of powers;
3) The State Supreme Court already declared a ban on gay marriage as against the California Constitutional; and
4) Court - are you gonna let VOTERS tell you what is Constitutional and what isn't?

Here's a legal primer for you - A court has never declared a Constitutional Amendment Unconstitutional - because all Amendments have equal dignity. Jerry Brown did not cite a single case to support his contention that a court can strike down a properly enacted constitutional amendment because it is unconstitutional.

What Brown did was admit everything was proper about the way Porposition 8 passed. He just doesn't like it. He cites no authority for why the Court can strike it down. He just says that he thinks it should be stricken.

My interpretation? Jerry Brown's position is that the People can never amend the Constitution to limit rights. From a political perspective, I'm all for that. The more rights the better!

BUT - it doesn't make sense to me. When I first read it, it was a nice thing about the tyranny of the majority over the minority. Once the emotion went away and I was able to stop and THINK about it, I began to ask myself why he cited no authority. I began to wonder why he didn't do his job!

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If the AG truly believes that the amendment is not constitutionally valid then he has an obligation not to defend it

How can a constitutional amendment not be constitutionally valid? It IS the Constitution. It may not pass muster under the US Constitution, but gays have NEVER been found to be a protected or suspect class. Never. The book has never been closed on that.

It is not the AG's subjective opinion that counts, is it? No. Let's not parse words - he doesn't want this to be the policy. (His brief was rather explicit in its statements that the people cannot be trusted, and only courts and policymakers should be.)

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This does not thwart the will of the people as there is contradiction in the expressed will of the people: the constitution as written and the proposed amendment.

The Constitution IS the will of the People. The Constitution can be amended. The Bill of Rights was not in the Constitution! It was amended to give those rights. The will of the People banned alcohol. The will of the People brought it back. The will of the People created the income tax - after the SCOTUS found it Unconstitutional.

Don't like the Constitution? Amend it. Don't leave it to judges to change things.

My wife is hotter than your wife.

[lawrocket 3]

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Jerry, as you know, in most US jurisdictions there is a type of lawsuit called a "mandamus action", in which a citizen petitions the court to issue an injunction to compel a public official to perform an official act which he has a duty, but refuses, to perform. So why not a mandamus action in cases like this? In fact, if Burris was my client, I might advise him to do just that: file a mandamus action against the Secy of State seeking to compel him to certify the appointment.

Absolutely! It's got me wondering why he hasn't done that.

Then again, there are always administrative procedures to go through. He still to go through that stuff to exhaust all administrative remedies prior to filing suit. Meaning, he may get that writ in 3-6 months.

Oh, yeah. And the writ would only be for White to go through the process again "in a manner not inconsistent with this opinion."

My wife is hotter than your wife.

[Andrewwhyte 1]

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As an officer of the court you (nor the AG) may not present a scenario of fact you know to be false.

What would be a "false fact" that is being presented?

None, that sentence was background for the following one to ensure you got my meaning.
As for the rest of it, my bad, it did not occur to me that the AG would actually make the case that the amendment was correctly enacted yet still illegal under the California constitution. As for it not being legal under the US constitution, that is a bit trickier. My argument for not defending what you do not believe to be lawful still stands,.. I think.

[SivaGanesha 2]

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As an officer of the court you (nor the AG) may not present a scenario of fact you know to be false.

Wouldn't this have an unintended effect if it were really followed? Some highly infamous and well known war criminal is on trial. Absolutely everyone in the world knows he is guilty. But he refuses to admit it and insists on his innocence and on defending himself on that basis. No lawyer can take the case because they'd be presenting a scenario they know to be false. Hence he must be set free because his right to an attorney has been denied.

Isn't that what would happen if attorneys were absolutely honest? Of course there seems little risk of that actually happening.

"It's hard to have fun at 4-way unless your whole team gets down to the ground safely to do it again!"--Northern California Skydiving League re USPA Safety Day, March 8, 2014

[Andy9o8 2]

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As an officer of the court you (nor the AG) may not present a scenario of fact you know to be false.

Wouldn't this have an unintended effect if it were really followed? Some highly infamous and well known war criminal is on trial. Absolutely everyone in the world knows he is guilty. But he refuses to admit it and insists on his innocence and on defending himself on that basis. No lawyer can take the case because they'd be presenting a scenario they know to be false. Hence he must be set free because his right to an attorney has been denied.

Isn't that what would happen if attorneys were absolutely honest? Of course there seems little risk of that actually happening.

Criminal defense attorneys get asked this question all the time: how can you defend someone you KNOW is guilty? The answer is: unless you have absolutely proof positive that your client actually did everything he's accused of (like a surveillance video clearly showing your guy robbing Apu at the 7-Eleven), you might BELIEVE that your client is guilty, you might even be FIRMLY CONVINCED that he's guilty, but unless he admits it to you, you cannot KNOW that he's guilty. And every accused defendant has the right to require that the prosecution prove him guilty by evidence at a trial. But, believe it or not, the vast, vast, VAST majority of attorneys simply will not present any evidence or take any position in court that the attorney KNOWS to be false. I know that doesn't fit the popular lawyer-bash, but it really is true.

[lurch 0]

Normally I never step into political threads and I know nothing of law, but I'm bored and this one piqued my interest. Mostly because I think I fully grasp Lawrockets position but I think theres an important argument against it.
The people doing the jobs of Secstate or AG are in positions of high authority and responsibility and it is presumed they were put there because their judgement was best for that role.
If they see a fault happening in the system they perceive as so wrong that they're willing to openly defy and break the law to stop it, shouldn't the fact that they're willing to go to measures like that set off a few alarm bells?
I mean, isn't this what they are there for? Should they not be listened to?
The only analogies I can think of are either nazis (Say, a banker refusing to confiscate a jew's holdings even though the law now requires him to do so) or the occasional draconian weirdnesses that crop up from time to time in America. For every teenager that gets busted for posession of a joint I'd bet there are 5 where the cop thought "Oh for christsake its only a kid with a roach and I'm not going to slap cuffs on the kid and destroy his life over it" even though the cop may be technically required to do so. It may be legal but its not Just. Cop is aware that "just doing my job" may be doing something terrible to that person and decide not to do it.
Kids scared and polite. Not exactly your gangsta punk. Cop takes the kids stash, dumps it by the roadside and tells him get outta here.

Which do you think serves the law better... draconian literalism? Bust every kid you can catch, subject them to maximum "consequences of their actions"...handcuffs, charges, rehab, bail, jail, lawyers, court time, big deal on their record and have them fearing and hating the cops? So far as I know, law says they can, and they must. Or the compassionate rulebreaker... kid knows cop coulda nailed him to a wall and didn't...kid learns respect for the cops and the law the cop just leniently enforced. (Technically, refused to enforce.) Kid stays out of trouble. A criminal is unmade. The law is served. Everybody wins.

If I understand the situation with Brown, (based on 15 minutes browsing the issues) is that he was backing the proposition that would and technically already had banned gay marriage in Cali. And at the last second he abruptly pulled a 180 and said No I won't do it this has got to be stopped.
I'd think society out to sit up and say ok, this guy just called emergency stop, lets stop and rethink this. Maybe we're about to do something really really bad to a whole lot of people all nice and legal and we ought to pause and reconsider before we pull the trigger on it.
If the legal wheels then turn and decide he was crying wolf because of come corrupt personal agenda and theres no kind of crisis or harm about to be done, then it gets implemented anyway.

Those pharmacists for example. They thought they were making a stand for life, refusing to notice that in doing so they were claiming absolute authority over someone else's reproductive health and behavior based on their particular take on religion.
If Jerry Brown is suddenly willing to break the law to stop the law from doing something he may perceive as a grave injustice, especially after, if I read it right, he was backing it all the way up until he suddenly switched and said it must be invalidated, isn't he doing his job by refusing to do it? Perhaps he rethought it and realized it was going to do a lot of harm to a lot of people, and stopping it would harm none. Maybe someone explained that to him. Maybe he got some info that convinced him prop 8 was a successful project by a bunch of people getting the legal system to enforce their religious beliefs on the other 48% of society and he just wasn't going to let it happen.

I'll leave out addressing whether or not there are proper channels for them to be taking such actions through or whether there ought to be. I don't know what the legal mechanism is for doing what they're doing, I just think before judging them so harshly for breaking the rules we ought to consider why they felt it necessary to do so. There might be a whole lot of people really grateful to Mr. Brown a little later not because he enforced their wishes on other people for them, but because he stopped the legal system from doing something really bad to them.
My .02$.
-B

Live and learn... or die, and teach by example.

[Nightingale 0]

There's a difference between making a statement that is outright false and making an argument that you think isn't going to fly because it's not the soundest of legal theories. Lawyers have to represent the interests of their client, even when the client is a dumbass, because everyone is entitled to a defense, however stupid, so we're forced to make what we believe to be losing arguments all the time... because you never know for sure that an argument is a losing argument until you make it and lose. Because you never know... there have been times when I've found myself staring at opposing counsel or the judge thinking "OMG he actually bought THAT?!"

[quade 4]

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Mind you, from a political standpoint, I stand 100% behind these guys. But from a pragmatic standpoint, this is repugnant! We've got the IL Sec of State saying - apparently with no authority to back him up - that he will not do his job in this circumstance. We've got the Cali AG - whose job is to represent the State of California and only the State of California - saying that he won't take this case.

How would you feel about a person in the military not following an order?

I'm hoping you'll say that it depends on the order being given.
I'm hoping you'll say that even if it's a direct order from the Commander in Chief it's still the duty of a raw recruit to refuse an illegal order such as to torture someone.

No?

quade -
The World's Most Boring Skydiver

[Nightingale 0]

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As an officer of the court you (nor the AG) may not present a scenario of fact you know to be false.

Wouldn't this have an unintended effect if it were really followed? Some highly infamous and well known war criminal is on trial. Absolutely everyone in the world knows he is guilty. But he refuses to admit it and insists on his innocence and on defending himself on that basis. No lawyer can take the case because they'd be presenting a scenario they know to be false. Hence he must be set free because his right to an attorney has been denied.

Isn't that what would happen if attorneys were absolutely honest? Of course there seems little risk of that actually happening.

Do you really KNOW for certain that he is guilty? or do you just think he is? is it just your opinion? If so, then do you truly know it?

A lawyer can't take a case and present a scenario that they know to be false. You cannot concoct an alibi for your client that you know is untrue. You can't say he was in Fiji on Friday if he was at your house having dinner with you and your wife. That's personal knowledge.

However, if you are given a video that the police say is of your client committing a crime, and the guy on the video looks like your client, do you really KNOW it's him? Were you there? NO! Since you do not have personal knowledge that it is your client on that video, you may present evidence indicating that it is not your client on the video.

The evidence pointing one way does not equal personal knowledge of what happened.

[lawrocket 3]

So are you telling me that there is no difference between a person who disobeys an unlawful order and a person who disobeys the law in making the unlawful order?

Gee, Paul, it seems to me the underlying problem is the policymaker ignoring the law. I will posit that most of these people, like Brown and White, believe that the circumstances justify breaking the law. Brown thinks that image is too important, so he'll break the law for the purpose of instilling confidence. Torturing assholes believe that thousands of lives are at risk.

Paul - they are different directions from the same starting point. They are both failing to obey the law for personal reasons.

Good luck to Jerry Brown prosecuting cases against people who exercise independent judgement in concluding that a law is unjust.

My wife is hotter than your wife.

[quade 4]

I'm not saying positively that they are right or wrong. What I'm saying is that in certain cases there is are acceptable reasons for not following laws or orders from superiors; tossing tea overboard, creating an underground railroad, not sitting in the back of the bus, teaching evolution. This is what our country is made of.

quade -
The World's Most Boring Skydiver

[lawrocket 3]

Paul:

I see your point. And from a philosophical standpoint I agree with you! That being said...

The job of the executive branch of the government is to enforce the laws. Both the Secretary of State and Attorney General are elected _executive_ positions. If the Secretary of State decides that he has a discretionary power to do things like ignore a writ, then there is a problem.

Quade - our country is made of people who think differently. People who do things differently. But, above all, people who respect the law and respect the authority it gives - especially if it is their job to enforce it.

You posit positions that people have taken for what is good. But you forget other circumstances where people ignored authority. People like George Wallace, who with firm belief and the support of many, stood for what he thought was right in declining to stand idly by while schools were integrated. He thought he was doing the right thing, and had a large support base.

In terms of his conduct Wallace is no different from Brown or White. All three took the position that they have subjective veto power - regardless of whether the law gives them that power. Indeed, all three are there to enforce the law - not to pick and choose which ones they agree or disagree with.

Wallace didn't do his job. Brown didn't do his. White didn't do his. For reasons that are objectively arbitrary and capricious. They overstep their authority.

My wife is hotter than your wife.

[Andrewwhyte 1]

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Brown thinks that image is too important, so he'll break the law for the purpose of instilling confidence.

I still say Brown is justified if he believes he is not breaking the law because the law is unconstitutional under the superior, federal constitution.
As an elected official he will place his decision in judgement by his employers at the next election.

[Andy9o8 2]

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Brown thinks that image is too important, so he'll break the law for the purpose of instilling confidence.

I still say Brown is justified if he believes he is not breaking the law because the law is unconstitutional under the superior, federal constitution.
As an elected official he will place his decision in judgement by his employers at the next election.

No. As an official in a public office, he may not simply do nothing. As California AG, he's sworn to uphold both California and Federal law; but his bailiwick is the enforcement of California law. If he feels that California law commands him to do something which conflicts with Federal law, then he has 3 options: (1) Obey his command under state law and do it anyway, (2) Resign his office because he's in an irreconcilably untenable position, or (3) Immediately refer the issue to the appropriate court to adjudicate the conflict. But merely doing nothing is an abrogation of his public duty.

[Andrewwhyte 1]

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(3) Immediately refer the issue to the appropriate court to adjudicate the conflict. But merely doing nothing is an abrogation of his public duty.

In this case, as I understand it, it has been referred to the courts. He has voiced his opinion that the law will not pass muster and that he is declining to spend taxpayers resources to attempt to attain an incorrect decision.

[lawrocket 3]

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Do you really KNOW for certain that he is guilty? or do you just think he is? is it just your opinion? If so, then do you truly know it?

The criminal defense attoney's job is to make sure that the prosecution proves its case constitutionally. If the police entrapped a person, or compelled a confession by torture, or barged into a defendant's house without a warrant then removed him to the street and pinched him for public intoxication? Or what if the prosecutor argues that the jury should just look at the preponderance of the evidence?

The defense attorney will say, "That's not constitutional." They make sure the prosecutor doesn't trample on rights. And if the prosecutor has the defendant airtight, well, now it is time to bargain.

Attorneys are duty bound to only maintain actions and positions that are consistent with the truth and non-frivolous. Think of the OJ case - OJ pled not guilty. The attorneys never said he was innocent. They merely ensured that the prosecution prove its case beyond a reasonable doubt. The "Dream Team" did their job. The DA's did not do their job of proving it. (Note - I still find the defense tactics to be abhorrent - they did not lie, but I think they took it too far.)

Main point - if you can't handle the requirements of your job, get another job. I've never done criminal law. I stay away from it because I don't know if I could or could not handle that. The attorney who defended Tim McVeigh did a good job, but due to personal reasons will not represent someone accused of elder abuse - that's her line.

I see little excuse for not faithfully executing one's duties becaus eyou don't like what you are required to do.

My wife is hotter than your wife.

[lawrocket 3]

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(3) Immediately refer the issue to the appropriate court to adjudicate the conflict. But merely doing nothing is an abrogation of his public duty.

In this case, as I understand it, it has been referred to the courts. He has voiced his opinion that the law will not pass muster and that he is declining to spend taxpayers resources to attempt to attain an incorrect decision.

It was referred to the courts. The court found it to be unconstitutional under the California Constitution. The California Constitution was amended. Therefore, it is now Constitutional.

Jerry Brown's brief would be a fine work for a political science dissertation. But this is a legal work. He argued that the rights put into the Constitution are not within the province of the Legislature or Executive to abrogate. He is correct in that. But since this was netiher the Legislature nor the Executive, that makes no difference. It was the People who voted on it to amend the Cal. Constitution.

Brown argues in one part that allowing it would actually strip the power of the judiciary to protect constitutional rights. Put another way, he is challenging judges to refuse to allow something like a constitutional amendment prevent them from doing the right thing.

Jerry Brown is wrong on this. This is a matter for the SCOTUS now.

My wife is hotter than your wife.