Posted in Crime, Equality, Local Politics, News, Wisconsin, Wisconsin Politics

WI AG chooses which laws to enforce

   August 21, 2009

(Update: two of BB’s readers gently direct me to facts that I did not know. After reading the post below, be sure to read Ordinary Jill’s and Laurie G’s comments to become more informed than I was when I wrote this post.-Thanks, PB.)

Another trend is developing in government: choosing which laws they will uphold. And Wisconsin is following Washington’s lead.

MADISON, Wis. — Wisconsin’s attorney general said Friday he will not defend a new law that grants same-sex couples spousal benefits such as hospital visitation and inheritance, saying lawmakers went against voters’ decision not to extend such privileges.

“When the people have spoken by amending our Constitution, I will abide by their command,” said Attorney General J.B. Van Hollen, who believes the law is unconstitutional. “When policy makers have ignored their words, I will not.”

This is something we have seen before under President Bush and President Obama, namely, deciding which laws or portions of laws will be adhered to and which will not. Now we have Attorneys General declaring what they will and will not do. This practice ought to  stop.

No one wants to do the hard work anymore to correct problems or resolve situations. The rulers among us just wish to declare, by fiat, what they will or will not do.

Regardless of your position on gay unions, a conflict is perceived to exist between the state constitution and new legislation. The constitution is the supreme law of the land and will win over any law. That is the foundation upon  which our legal system is based.

However, until that law is deemed unconstitutional it should be enforced.  The AG needs to do the job he was elected to perform or he should be removed.

We all know what is needed to prevent problems like this:  first, we need a governor who seeks counsel on constitutionality before signing legislation into law (a constitutional impact statement perhaps) and/or we need a Wisconsin Supreme Court review of laws that change the status quo. And we need that accomplished  immediately  after the laws are voted upon by the legislature  but before they are in effect.

Legislators pass unconstitutional laws regularly. One would think that with their law degrees they would only pass constitutional laws. Ha! They are politicians and  they need two things to keep them that way: votes and money to obtain votes. Some (Many) will trade their integrity for sufficent quantities of both money and votes. Call me cynical if you like, but I prefer the term ‘wise observer’.

I support gay rights in domestic relationships and think that  genders are not relevant. However, I do defend the Wisconsin constitution over any laws enacted to circumvent it. To do otherwise is to undermine the constitution and politics.

But under present conditions, the AG needs to enforce the laws of the state until they are declared unconstitutional or he should be removed from office.

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15 thoughts on “WI AG chooses which laws to enforce”

  1. Actually, this is not a new thing for a Wisconsin AG.

    “A week before Shabaz announced his ruling, Wisconsin’s Attorney General James Doyle went public explaining why he refused to defend the Good Friday law…In an interview by Steven Walters of the Milwaukee Journal Sentinel, Doyle said ‘it is really offensive to go before a court and argue that Good Friday is not a religious holiday.'”

    Van Hollen is not refusing to “enforce” the law; he is refusing to act as the State’s legal counsel in a lawsuit challenging its constitutionality, just as Doyle did with the Good Friday law. No surprise there.

    Maybe Doyle can defend it himself in the lawsuit; it would be an interesting contribution to his gubenatorial legacy. He’s got nothing to lose now.

      1. Now the light bulb turns on. Thanks for letting me know. If I understand this correctly, the AG would still prosecute offenses committed under the law but would not defend the constitutionality of the law. Is that correct?

        1. I believe so, although I cannot think of what sort of offense could be committed that would require prosecution, since the domestic partnerships only convey benefits from those institutions (like employers) who have voluntarily agreed to recognize them. I suppose if an employee of the Clerk’s office turns away a couple who have come to register their domestic partnership, that would be illegal. But it would more likely be subject to employment sanctions than criminal prosecution.

    1. Thanks for pointing the way. I read both of these opinions and understand their points although I think they are weak on the claim that domestic partnerships are dissimilar to marriages. When the basis for dissimilarity is not the reality of the people’s lives but the number of legally recognized benefits one receives, well, that is just plain silly. To put this another way, the silly argument is that marriage is defined by the number of legally recognized benefits accorded by the laws of the state of Wisconsin.
      Fortunately, I do not make my living in the legal profession and will not have to prove that silliness is really seriousness.I could not do that.

  3. I doubt that Doyle’s response will concentrate on simply enumerating “benefits” but rather emphasize the historical approach taken by Prof. Schwartz.

    Hopefully it will also point out that according to Appling’s own metaphysical conception of marriage as a sacred institution devised for the express purpose of repopulating the State of Wisconsin and her arrogant dismissal of same-sex couples as selfish, self-interested Epicureans, her own argument defeats itself on the “substance” element.

    In other words, domestic partnerships can’t possibly be anything like marriage according to the very distinctions she herself draws.

    There is also the separate question of whether Appling and her cohorts misled voters in describing the intent of the amendment, as Prof. Schwartz suggests.

    1. That is exactly right.

      First the Court will have to determine if they will hear the case…if they choose not to everything continues on as is. Four out of seven must agree to hear it.

      If they do hear the case that Appling’s group WI Family Action (WFA) brought then traditionally the AG would defend the State, but in this case the State would now have to hire an outside private attorney to argue the constitutionality of the domestic partner registry. Hence now not only paying our AG his salary, but also paying an additional attorney to do the AG’s job.

      The crux of the State’s argument is exactly what illusory tenant said.

      The accounts that both the sponsor of the amendment Rep Gundrum and Appling/WFA said that it would not negate DP benefits being provided by public employers (i.e. Milwaukee, Madison and other municipalities including the State in the future) and private employers Northwestern Mutual, Bank One, etc. – in fact a registry gives these employers a way to verify employee claims.

      Daily Dose posted by Lisa Kaiser has a great tidbit to ponder.

      http://www.expressmilwaukee.com/blog-4183-ag-van-hollen-domestic-partnerships-are-unconstitu.html

      Here is an excerpt from her article.

      “And, by the way, Van Hollen said this after he was elected:

      “[Van Hollen] agreed with Lautenschlager’s recent opinion that a constitutional amendment banning same-sex marriage would not prevent local governments or private employers from providing health benefits to the same-sex partners of employees.”—Wisconsin State Journal, Jan. 13, 2007 “

      Me smells perhaps a thought of running for Governor………

    1. IT – I will see what I can do!

      btw…this suit would all be moot if the Court determines that McConkey is correct in his assertion of the amendment is not constitutional because it states two differing purposes in one amendment versus splitting it into two amendments.

      http://www.wisbar.org/AM/Template.cfm?Section=News&Template=/CM/ContentDisplay.cfm&ContentID=84790

      Unlikely…but….one never knows.

      It does add another level to the AG’s decision not to defend the State in the WFA suit. He would have to defend that the amendment is constitutional in the McConkey suit and then turn around and defend that DP benefits/registry is constitutional….not opposing ideals…but does give more insight into how he is positioning himself for future positions and offices.

  7. Hey John, a “quiet Republican bigot” huh? Well he just happens to be defending what a resounding 60% of Wisconsites voted to make part of the state constitution 3 years ago.

    Don’t sit there all smug. You just know if it were some liberal ideology that a liberal AG was defending that wasn’t at all based on law, you would be championing him as a hero for humanity.

    1. forgot, I’m going to have to disagree that voters were voting against domestic partnerships. After all, no less than Julaine Appling made it clear when the Constitutional amendment was up for a vote that the amendment wouldn’t prevent the establishment of domestic partnerships.

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