The six of us served as Idaho attorney general from 1971 to 2003, a total of 32 years. It is an important state office, but Idahoans are often in the dark as to what the attorney general is supposed to do. Although the AG runs on a partisan ticket, voters may not know that his official functions are mostly legal in nature. He provides legal advice to government officials so that they can act within the law. In actuality, the AG is much like a family lawyer to the state.
We expect the lawyers we hire for our personal or business affairs to give us honest, accurate advice about the law to keep us out of trouble – to tell us what the law is, rather than what we wish it was. It is often said that lawyers are not doing their job if they don’t sometimes warn clients against doing what they want to do.
Like a family lawyer, a competent AG tells state officials what they need to do to keep the government out of legal trouble. The AG’s oath of office requires that he give legal advice and assistance that complies with the U.S. and Idaho constitutions. Keeping the government on firm legal footing is not headline-grabbing, but it is essential for the protection of both the government and the citizenry.
What does often make the news are AG opinions on hot-button issues. The AG is required by statute to provide legal opinions to other state officials upon their request. The opinions must be based on the law as it is at the time and they must be accurate. Otherwise, the state could face substantial liability. During the legislative session, it is not unusual for the AG to be asked about abortion and any number of similar issues.
We have all been asked for legal opinions that require us to provide accurate legal opinions that may be contrary to our own strongly-held beliefs. The law requires that we put our personal beliefs aside when doing this work. Giving a green light to legislation with serious constitutional problems is a violation of our duty and does not benefit anyone. The courts will strike it down and require the state to pay the attorney fees of the person or group challenging the law. We’ve seen that happen all too often.
A case in point is Senate Bill 1309, the abortion bill currently being challenged in the Idaho Supreme Court. The AG issued an opinion pointing out constitutional problems with the bill even though he is personally pro-life. He was duty-bound to put his personal views aside to do his job. The AG does not tell legislators what they may or may not do. He only tells them what the law is.
The AG serves as a member of the State Land Board and as the board’s legal advisor. The board is required by the Idaho Constitution to get the maximum long-term return from state lands for the benefit of our public schools. If the board is inclined to give favorable rates to people using those lands for grazing or vacation homes, the AG is required to advise against it. People’s feathers may be ruffled, but it is the AG’s job.
The AG has a raft of other important duties. He is the state’s chief legal officer. He defends all appeals by convicted criminals. He protects the public from con artists. He litigates in court against federal overreach. He protects Idaho’s water. Above all, the AG is the person most responsible in the state for upholding the rule of law, regardless of whether he or she may object to some of those laws.
The AG can advocate for changes in the law through legislative action or in federal or state court proceedings but must always observe the law as it currently exists. As a nation of laws, we should expect no less from the state’s family lawyer.