UPDATE: Speaker Howell has tentatively agreed to bring the resolution to the floor in the next 2-3 weeks. He says he has received many polite calls with the request for this House Resolution. Thanks so much and don’t forget to keep calling and expressing your positive support for House Resolution 541. Make sure your delegate will be supporting it when it comes to the floor as well!
Attorney General Herring should be fired from the marriage case for abandoning his responsibilities as attorney general, turning his back on the Commonwealth of Virginia, and rejecting the rights of states to establish their own constitution and laws. Due to a current House Resolution, there is an opportunity to make that happen during the current special legislative session.
Earlier this year Attorney General Herring took the unprecedented action of violating his oath as the Attorney General and as a member of the Virginia State Bar when he chose to abandon his client – the Commonwealth of Virginia – in the lawsuit filed against the Commonwealth regarding Virginia’s constitutional marriage amendment. Instead, Herring chose to defect to the other side and join the adversaries who are challenging the Virginia Constitution. As a result, the Commonwealth of Virginia has no legal representation to help defend the Virginia Constitution.
It is not uncommon for an attorney general to recuse himself from a case if he has a conflict of interest, but that was not the situation with Herring. Herring brazenly decided that he no longer supported the marriage amendment to the Virginia Constitution (after misleading Virginians on this point during his campaign) and refused to represent the state in this matter. Further, he joined the adversarial counsel that was suing his client! Consequently Herring faces almost 70 ethic challenges before the Virginia State Bar for his dereliction of duty to the Commonwealth of Virginia.
Now, the question before the General Assembly is, what can the Commonwealth do to ensure it has legal representation to defend the Virginia Constitution and Virginia voters? There is a good chance this issue will makes its way to the U.S. Supreme Court, but as it stands now Virginia (and its constitution) would have no representation when it does. A House Resolution has been drafted (HR541) to remedy this problem and address the failures of Herring. The arguments for the resolution are:
- This resolution provides the ONLY WAY for the House to displace (AKA fire) the Attorney General and hire its own independent legal counsel, a House of Delegates attorney on behalf of Virginia, to represent the state’s interest. This resolution makes it likely a federal judge would remove Herring in favor of the House attorney since the powers of the attorney general’s office are only those provided specifically in law – there is no ‘common law’ authority of the attorney general.
- Herring is only empowered to employ special counsel to represent the Commonwealth, which he refuses to do in this case. He has no statutory authority to file a position that prejudices the Commonwealth.
- Herring has clearly exceeded his authority. Without this resolution a judge would have no way to displace Herring to ensure the Commonwealth is adequately represented.
- This resolution is required because the House must act as a legislative body to represent the Commonwealth. Individual members can’t unilaterally give the Commonwealth standing or representation.
- In order for this to be a State action, a branch of the legislature must vote to do so.
- This resolution will place a state before the U.S. Supreme Court to make the federalism argument that the States are given purview over marriage in their own state, and that they have always had this purview. The federal repeal of DOMA (Defense of Marriage Act) should have no bearing on the action of states, which are free to establish their own laws under the 10th Amendment to the U.S. Constitution.
- From a legal standpoint, Obamacare was not about healthcare. It was about liberty – the freedom of the states and the people to not have the federal government dictating every aspect of healthcare. Whether or not states will continue to be able to make their own decisions is also at stake in the marriage case. Justice Kennedy (who tends to be the deciding vote on these matters in the Supreme Court) has always been a strong supporter of federalism, and thus will likely be receptive to these solid arguments about state sovereignty.
The Clerk of the Court from Prince William County, Michelle McQuigg, is currently the primary defender of our marriage amendment. (As a side note, folks should call her office and thank her.)
While she has sufficient standing to sue, it is critical that the Commonwealth itself be given adequate representation if we hope to be able to make a compelling federalism argument before the Supreme Court.
The Speaker and your member of the House of Delegates should know that you support HR 541 so that we can fire Attorney General Herring and fight for the 10th amendment and marriage. Time is of the essence to fire Herring, defend the rights of states, and defend the family. Call Speaker Howell now and ask him to bring the resolution to the floor for a vote.
text of resolution:
HOUSE RESOLUTION NO. 541
Offered June 11, 2014
Authorizing the Speaker of the House to employ legal counsel to represent the House of Delegates in pending litigation involving the challenge of the constitutionality of Article I, Section 15-A of the Constitution of Virginia.
Patrons– Cole, Lingamfelter, Ransone, Bell, Richard P., Byron, Cline, Fariss, Landes, LaRock, Webert and Wilt
Committee Referral Pending
WHEREAS, the Constitution of Virginia is the fundamental law of the Commonwealth; and
WHEREAS, the House of Delegates twice voted to approve an amendment to the Constitution of Virginia to add Section 15-A, which is popularly known as the Marriage Amendment, to Article I, declaring that “only a union between one man and one woman may be a marriage valid in or recognized by the Commonwealth and its subdivisions”; and
WHEREAS, the people of Virginia voted in 2006 to ratify Article I, Section 15-A of the Constitution of Virginia; and
WHEREAS, Article I, Section 15-A has been challenged in federal court as violating the United States Constitution; and
WHEREAS, the Office of the Attorney General of Virginia initially filed a vigorous defense to the constitutionality of Article I, Section 15-A of the Constitution of Virginia; and
WHEREAS, upon assuming office as Attorney General of Virginia in January 2014, Mark Herring announced that his office would no longer defend Article I, Section 15-A of the Constitution of Virginia, declined to employ special counsel to defend that provision in his place, and filed a position on behalf of the Commonwealth arguing that the provision violated the United States Constitution; and
WHEREAS, the Governor of Virginia has refused to exercise the authority granted to him by § 2.2-510 of the Code of Virginia to employ special counsel to defend the constitutionality of Article I, Section 15-A of the Constitution of Virginia; and
WHEREAS, the people of Virginia and the House of Delegates have been deprived of representation in the pending federal litigation and of a vigorous defense in their name and that of the Commonwealth of the constitutionality of Article I, Section 15-A of the Constitution of Virginia; and
WHEREAS, the decision of the federal district court in such challenge, which invalidated Article I, Section 15-A of the Constitution of Virginia as being in violation of the United States Constitution, has been appealed to the United States Court of Appeals for the Fourth Circuit; and
WHEREAS, the decision of the United States Court of Appeals for the Fourth Circuit involving the challenge to Article I, Section 15-A of the Constitution of Virginia is likely to be presented to the United States Supreme Court for review regardless of the outcome of the appeal; and
WHEREAS, the House of Delegates has a strong interest in defending the constitutionality of Article I, Section 15-A of the Constitution of Virginia in the absence of an advocate for that position on behalf of the Commonwealth in the pending challenge to that provision; now, therefore, be it
RESOLVED by the House of Delegates, That the Speaker of the House be authorized to employ legal counsel to represent the House of Delegates in pending litigation involving the challenge of the constitutionality of Article I, Section 15-A of the Constitution of Virginia.
RESOLVED FURTHER, That the Clerk of the House of Delegates transmit a copy of this resolution to William J. Howell, the Speaker of the House.