Attorneys General and the Opinion Writing Authority: Ensuring Its Legitimate Exercise | thgrayson | July 05, 2011


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Attorneys General and the Opinion Writing Authority: Ensuring Its Legitimate Exercise

Attorneys General and the Opinion Writing Authority: Ensuring Its Legitimate Exercise

Addison Thompson


For most Americans, the most salient political question of 2004 was a national one—namely, whether the country would re-elect President George W. Bush, or install John Kerry as the nation’s forty-fourth chief executive. As is often the case in national election year cycles, however, the barrage of media accorded the presidential race obscured otherwise important political developments at the state and local level. With the benefit of hindsight, one such example was clearly that of Arizona’s Proposition 200 (“proposition”), a ballot initiative ostensibly aimed at ensuring the integrity of Arizona’s electoral and public benefits processes. The furious debate that occurred within Arizona about the appropriateness of such a measure in many ways portended the rising national debate about immigration, which appears to be a defining issue for 2006. What makes Proposition 200 important for this paper, however, is not the significance of the underlying issue, but rather the critical role that the Arizona Attorney General assumed in determining the resolution of this policy debate. Indeed, by exercising the office’s opinion writing authority—which affords the attorney general, an executive official, the ability to interpret legal questions posed by state officials—Goddard played a major role in shaping the proposition’s ultimate effect.

Despite the opinion writing process’ manifest ability to influence legal, and by extension policy decisions, academic literature addressing this prerogative is limited. Of the many issues that warrant further discussion, none appears more important than the issue of how the opinion writing process arguably allows the office of the attorney general to insert itself into a vacuum and independently influence the direction of state policy. While the majority of opinions answer seemingly mundane issues, on occasion opinions implicate volatile and highly visible public policy issues. The question then arises whether the attorney general, through an opinion writing process unfamiliar to the general public, represents the appropriate institution for resolving the relevant issue. Indeed, the resolution of legal issues usually involves the judiciary; yet, in the context of the opinion writing process, attorneys general may be called upon to issue opinions on subjects about which an AG may have expressed a political opinion. Though checks on this power potentially exist—for instance, through the democratic process (as the majority of attorneys general are popularly elected) and via judicial review—there are undoubtedly tensions inherent in the opinion writing process.

Perhaps, however, the dearth of attention given to the issue indicates that such questions are not, in fact, taken seriously. But with the rise of the multi-state system—and the attendant scrutiny regarding the more proactive role exhibited by state attorneys general —examining this issue in more depth seems particularly appropriate.

By recounting the history of Arizona’s recently enacted Proposition 200, which, in turn, led the Arizona Attorney General to issue an opinion purportedly limiting the scope of the initiative, this paper offers insights into the factors that inform the opinion writing process. In addition, this paper discusses an earlier opinion in Arizona that helps to illustrate the boundary of the legitimate exercise of this prerogative.

Part I: An Introduction to the Attorney General’s Opinion Writing Power

The origins of the attorney general are found in 16th century England, where a single attorney came to represent the interests of the king. Situated within the executive branch, the office of attorney general is constitutionally defined in most states and in forty-three states is elected directly by the people. As the state’s chief legal officer, an attorney general’s manifold responsibilities include managing and controlling the state’s litigation docket, defending the state in court, and serving as legal counsel to state agencies, officers and the legislature. Within this last obligation lies the opinion writing process, through which an attorney general’s clients often have the ability to request guidance from the office about their duties under the law.

Whereas many of the office’s responsibilities require the attorney general herself to initiate legal proceedings, it is important to note that the ability to employ the opinion writing authority requires that a state official first solicit the AG for advice. Exercising the opinion writing process is, therefore, predicated upon external actions and does not originate from within the office. Consequently, it is critical to understand the circumstances that warrant issuing an opinion, as well as the equally important question of who may initiate the process. Despite the external origins of an opinion, attorneys general nevertheless retain discretion in deciding when to honor a request. As such, the opinion writing authority is a synecdoche of an inherently fluid part of our government—just as an attorney general relies on judgment in deciding whether to utilize parens patriae standing to bring suit, he or she must judiciously weigh the need for an opinion.

The specific responsibilities contained within the Attorney General’s opinion writing prerogative vary from state to state. Broadly speaking, however, one could characterize the following situations as instances where the office’s opinion writing process may be implicated:

  • when one agency of officer is confused by or disagrees with a legal position taken by another;
  • when litigation is threatened or a legal interpretation is needed for enforcement purposes;
  • interpreting an ambiguous statute where no court opinion has been issued;
  • when conflicting views exist as to the AG’s interpretation of statutes or case law;
  • advising the legal status and constitutionality of newly proposed legislation; and
  • where questions arise as to the scope of one legal authority—an agency or officer—vis-à-vis another.
Generally, then, the Attorney General’s opinion writing serves as a means for resolving ambiguous legal questions confronting state agencies and officials regarding their duties.

Conversely, there are a number of situations where attorneys generally do not—and should not—issue opinions. Though necessarily an issue of discretion and statutory interpretation, an office might be wise to identify certain types of recurring issues that are ineligible for review. The Arizona Attorney General’s office, for example, has prepared an overview of the opinion writing process to distribute to legislators in the state. In the document, the office identifies six types of questions—including those that turn on specific facts and concerns related to pending litigation—where the AG typically declines an invitation for guidance. Too, issues that are ostensibly legal but whose resolution would yield large financial burdens on the state are among those better left to the legislature for resolution.

The authority to address these situations varies slightly according to state, particularly as to who exactly is entitled to petition the AG’s office for a formal opinion. In New York, for example, the Attorney General’s opinion writing function is found in the following statutory language: “[the AG shall] have charge and control of all the legal business of the departments and bureaus of the state, or of any office thereof which requires the services of attorney or counsel.” Hence, opinions may be issued for all agencies and state officials who request one. Others states—including California and Arizona, for example—identify by statute a broad spectrum of state officials who may request opinions on questions of law relating to their duties. Though most states ostensibly limit—some explicitly —the scope of officials eligible to request opinions, certain offices of the attorney general on occasion appear to render opinions as a matter of courtesy to state and local government officials not identified by statute. In Arizona, for instance, the AG’s office has identified cases where an informal opinion may be issued to “provide guidance to State officials in exercising their statutory authority and duties.” Unlike their official counterparts, these informal opinions are not signed by the AG and are not published on the website. Additionally, such statutes indicate whether the process is available solely to state level officials, or is extended to local officials as well. Two primary risks exist, however, if the privilege to solicit opinions is overextended: first, it might impose an unnecessary burden on staff capacity; and second, by issuing too many opinions, an attorney general may appear like an individual’s attorney (a risk that is magnified if favoritism is suspected), a role incompatible with the office’s obligation to the state.

A considerably more complex picture emerges when one considers the purpose behind requests for official opinions. That is, while the overall goal of the opinion writing process is relatively straightforward—the clarification of legal issues affecting state agencies and officials—ulterior motives perhaps inform the initial decision to request guidance. In cases where an unpopular policy exists, for instance, an official may consult the Attorney General’s office not because the issue is unclear, but rather because the answer is unpopular. The resulting opinion effectively shields the agency from criticism, for its officials can point to the imprimatur of the AG’s office when implementing the policy. Alternatively, a state legislator frustrated with the current implementation of statutory language might seek an opinion in the hope that the subsequent interpretation will accord more closely with his or her expectations. Consequently, while perhaps not commonly associated with the AG’s power, the opinion writing process does have the potential to enter the public’s conscience in situations where legal questions implicate controversial policy decisions originating in the legislative branch. Such a result may jeopardize lines of democratic accountability, for an AG issuing an objective legal opinion may nevertheless be accredited with originating a policy that in fact resulted from the legislative process. Or, more problematic, an attorney general’s opinion may amend statutory language without the requisite legislative approval.

In the event that a state official requests an opinion from the Attorney General, the process for researching and writing the opinion is relatively straightforward. As Andy Bennett, a Chief Deputy Attorney General in Tennessee, notes, questions vary in complexity from the simple—for instance, simply locating the particular statute addressing the legal question presented—to complex interpretations about the constitutionality of state legislation. The opinion writing process itself occurs according to one of two basic structures: either a specific division handles all legal opinions (the “centralized” approach), or the division with the requisite experience handles opinions on an ad hoc basis (the “decentralized approach”).

While each has its advantages and disadvantages, the centralized model is arguably preferable for two significant reasons. First, by designating specific attorneys to lead the opinion writing process, an attorney general creates institutional knowledge within the office that is absent in the ad hoc decentralized approach. That is, if specific attorneys are always responsible for researching and writing opinions, they are able to develop expertise and best practice models that benefit the entire opinion writing process. And second, the centralized approach helps to ensure the objectivity of the process by limiting the potential influence of political ideology. For, by establishing a consistent channel for opinions ideally leading to a division staffed by career attorneys, an attorney general obviates the temptation to assign an opinion to someone perceived as most likely to reach the ideologically desired (but perhaps legally flawed) result. Ultimately, in researching and authoring the answer, the most fundamental goal is to apply the law objectively, a task not unfamiliar to staff attorneys.

Another important issue that arises during the research and writing phase is whether to solicit, or even permit, outside briefs from interested parties. Again, two different approaches have been employed. As discussed below, the Arizona Attorney General’s office viewed the resolution of the question in Proposition 200 as a strictly intra-office endeavor, lest the office be subjected to accusations of bending to outside lobbies. A possible exception to this rule exists, however, in cases where similar questions of law have been addressed by an office of the attorney general in another state. Under such circumstances, the office might—at least informally—consult its counterparts. The disadvantage of this approach is that it shields the opinion writing process—already a little-understood prerogative of the attorney general—and further removes it from public discourse. Hence, there appears to be a trend among offices toward allowing briefs based on the fact that the opinion and its reasoning will ultimately be in the public record. Increased transparency certainly has its merits; moreover, it is not at all evident that a politically divisive opinion will be perceived by opponents as more legitimate simply because no briefs were solicited.

Once the office reaches a conclusion about the legal issue at hand, the opinion is, of course, provided to the state official who requested the information. In addition, depending on the importance of the issue at hand, the opinion may warrant publication to ensure widespread access—both for state officials and for the general public. Certain states have different procedures according to the complexity of the issue discussed; in Michigan, for instance, the office has implemented a three-tiered system: formal published opinions, letter opinions, and informational letters.

The next important question one must ask is how much deference is owed a legal opinion once issued by a state attorney general? The capacity for an executive official to analyze legal issues necessarily raises separation of powers concerns, as the ability to make official pronouncements about the legality and interpretation of statutes ultimately rests with the judiciary, not the executive. Generally, an opinion carries significant weight—notably affording immunity to any state official adhering to its ruling—but does not bind the courts. In Michigan and Arizona, for example, opinions are binding on state agencies and officials, while constituting persuasive authority in the courts’ eyes. With the ability to define legal issues affecting state officials, as well as to influence statutory constructions ostensibly within the purview of the judiciary, an Attorney General’s opinion writing authority is significant.

As one commentator noted, it is possible to characterize the AG’s opinion writing role as “quasi-judicial.” That is, even though the AG is located within the executive branch, the office—when requested by a legislator or state official to issue an opinion—assumes a role more commonly associated with judiciary. This authority is not, however, completely anomalous in our system of government: agencies, for example, promulgate legal rules despite existing within the executive. Hence, concerns about separation of powers, specifically the non-delegation doctrine, might be mitigated by referencing the checks that exist on agency discretion. Notably, the federal office of the attorney general retains a similar opinion writing power, which also raises questions about the scope of the executive’s authority vis-à-vis the judiciary.

Part II: Case study of the Opinion Process, Arizona’s Proposition 200

Section A: The History of Proposition 200

The origins of Proposition 200 are found in the formation of Protect America Now (PAN), a committee comprised of several influential conservatives from Arizona who were determined to address the perceived problem of the influx of illegal immigrants into the state. Relying on a study released by the national immigration reform organization Federation for American Immigration Reform (FAIR)—in which the group suggested that the presence of undocumented aliens cost Arizona more than one billion dollars annually, or $700 per legal resident —PAN argued that the state needed to curtail the influx of new aliens by limiting access to public benefits, a perceived pull factor for new arrivals. Specifically, PAN proffered a plan requiring state officials to verify an individual’s immigration status before providing public benefits or extending the franchise. Beginning in late 2003, therefore, the group initiated a concerted effort to garner enough signatures to ensure that the initiative appeared on the 2004 ballot.

Notably, PAN’s effort did not represent the first attempt by a state to use a ballot initiative to limit immigrants’ access to public benefits. Ten years earlier, Californians had endorsed sweeping anti-immigrant measures in voting for California Proposition 187. Although Proposition 187 ultimately failed—for both political and legal reasons—PAN believed that two factors distinguished its initiative from California’s infamous precedent. First, the group believed that the courts had not, in fact, ruled on the constitutionality of Proposition 187; accordingly, a vigorous legal defense by the state could protect such popular initiatives. And second, PAN noted that subsequent federal legislation—most notably the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA)—had explicitly extended state authority vis-à-vis the federal government regarding the provision of public benefits. Moreover, to avoid potential constitutional pitfalls, the ballot proposal supported by PAN—unlike its predecessor—carefully avoided challenging certain guaranteed rights, including access to primary education. Yet, as the following sections illustrate, the exact scope of the amendment remained unclear, even to the proposal’s supporters. Instead, PAN initially focused on mobilizing sufficient popular support to ensure that their initiative even made it onto the ballot.

A significant source of confusion regarding Proposition 200’s potential impact lay in the fact that PAN’s once unified coalition began to split during the summer of 2004. Two rival camps emerged: the original Protect America Now and a new more radical group called “Yes on 200.” Importantly (for this paper’s focus), the ensuing camps both continued to solicit signatures for including the measure on the ballot; however, there were critical differences in the proposed language. PAN’s petitions described the legislation as limiting access to welfare only, whereas their erstwhile colleagues advocated for a more sweeping restriction of all public benefits. Ultimately, PAN—benefiting from more substantial financial and organization support from FAIR—collected the majority of signatures.

In July 2004, PAN submitted over 190,000 signatures to the Arizona Secretary of State, exceeding the Arizona Constitution’s requirement that ten percent of qualified voters support an initiative before it is included on the ballot. Ironically, however, the version ultimately approved for inclusion on the ballot contained the more ambiguous and potentially far-reaching language endorsed by “Yes on 200.” The already controversial measure, one that observers did not think would pass the signature requirement, thereafter became an intense political issue within Arizona. Many politicians, including both Democrats and Republicans, opposed the bill for its anti-immigrant animus. Importantly, Attorney General Terry Goddard, a Democrat, was among those who voiced opposition to the proposition. Though it is not unusual for attorneys general to announce political views—for, as an elected officer in Arizona, a candidate must differentiate himself or herself from an opponent—advocating for one side of an issue potentially bound for litigation risks jeopardizing the perceived legitimacy of the ensuing legal outcome. Consequently, attorneys general would be wise to limit discussion of hybrid political-legal issues likely to require clarification through the opinion writing process. Where, however, such an issue implicates demonstrably legal issues within the purview of the AG’s opinion writing process—as was the case with Proposition 200—such action seems appropriate.

Voters ultimately approved the measure by a margin of 56 to 44 percent. As law, the Proposition became known as the Arizona Taxpayer and Citizen Protection Act (“Act”). The Act contained three key provisions that altered various sections of the Arizona Revised Statutes: first, it required proof of citizenship in order to register to vote and cast a ballot; second, it called for state officials to verify an individual’s citizenship before providing any public benefits; and third, it mandated reporting illegal immigrants to federal officials. This paper focuses on the second prong—the eligibility requirements for public benefits; the other two issues more strongly implicate federal oversight.

Section B: The Attorney General’s Opinion

No sooner had the votes been tallied than the next round of controversy emerged. Indeed, while the voters had approved Proposition 200 in principle, the ability for the state to consistently implement the Act required the resolution of a number of underlying ambiguous legal issues. Most significantly, the exact meaning of the “state and local public benefits” now proscribed without proper proof of citizenship remained unclear. Two possible but conflicting interpretations existed. Under the first theory, the new text only applied to Arizona’s welfare code, as codified in Title 46. Evidence supporting such an interpretation included the fact that language of the act explicitly amended this section. Alternatively, the Act could cover all benefits included under the federal definition of “public benefits.” Hence, clarification of the term “public benefits” was needed—neither the text of the Act itself nor state law offered guidance on this issue.

Doubt existed, moreover, about which institution was most appropriate for resolving the legal issues surrounding the provision of public benefits. According to one think tank in Arizona, either the legislature or—more likely—the courts could provide the requisite clarification. Notably, however, the think tank neglected to mention the possibility that the AG’s office might offer guidance through its opinion function. Of course, the AG does not initiate the procedure of issuing an opinion—the role is predicated upon an agency first requesting clarification. Yet, in a case like Proposition 200 where state agencies are demonstrably affected by statutory changes, there is a significant possibility that the opinion writing process will be implicated. This failure to appreciate this prerogative of the office of the attorney general reveals a lack of public perception—even among public policy experts—about a potentially authoritative tool in states’ efforts to resolve important legal questions. Addressing this dearth of public awareness—and the attendant deus ex machina quality of an opinion—poses an important challenge for the office. One example of a strategy aimed at increasing the transparency of the opinion process is to ensure that such opinions are available online.

Importantly, in the months leading up to Election Day, Attorney General Goddard recognized that his office would likely be consulted about the meaning of public benefits subject to the new restrictions. State agencies would, after all, be the ones implementing the Act’s ambiguous language. Indeed, Goddard noted in September 2004 that the scope of the “benefits” alluded to in the proposal’s relatively ambiguous language; consequently, staff attorneys, including those responsible for issuing official opinions, began studying the legal implications of the proposition. Such action represents an important strategy for improving the quality and expediency of the opinion process. By anticipating that the office may be called upon to issue a legal opinion regarding the scope of newly introduced legislation—whether a popular initiative such as Proposition 200, or a recent legislative enactment—an attorney general affords staff additional time to research the issue, while also potentially mitigating the pressures associated with authoring a highly visible and controversial legal opinion.

Shortly after the election, Anthony Rogers, the Director of the Arizona Health Care Cost Containment System, submitted the following question to the Attorney General: “What are the ‘state and local benefits’ for the purposes of Proposition 200?” Like all opinions authored by the Arizona AG, the request was processed according to a set of guidelines promulgated by the office in 2001, which established the following steps. First, the Attorney General forwards the inquiry to the Solicitor General to determine if the underlying legal question is within the office’s purview. Next, the Solicitor General assigns the opinion to attorneys within the office who are obligated to “fully understand” the issue and author an opinion answering only the question presented. Finally, the Solicitor General distributes draft copies to the “Opinion Review Committee,” which is responsible for considering the opinion’s legal research, analysis, reasoning, and style. Before finally presenting the revised opinion to the AG, the opinion is subjected to a final cite check. Because the office expected the opinion request for Proposition 200, and also had in place an effective structure for processing such legal requests, it was prepared to respond both expeditiously and judiciously. On November 12, just ten days after the vote, Attorney General Goddard delivered his response to the question of what constituted a public benefit.

In answering the question regarding the scope of “state and local benefits” subject to the Act, the opinion primarily focused on principles of statutory construction. Because a ballot initiative provided the source of the language, one of the primary goals was to give effect to the intent of both the framers and the electorate who supported the measure. In order to analyze the intent, the AG office consulted a publicity pamphlet authored by the Legislative Council—consisting of a fiscal analysis, as well as arguments for and against the initiative—that was made available to voters in the months preceding the election. Though the office determined that the evidence was not conclusive as to intent, the opinion did note that the pamphlet, together with the fact that some supporters believed that it should only apply to “welfare,” suggested a narrow construction of “public benefits.”

The crux of the legal analysis focused on honoring the plain meaning of the statutory language, with particular attention given to the placement within the statutes it purported to alter. Proposition 200 explicitly amended Title 46 of the Arizona Revised Statutes, while leaving out references to other titles—which, under the USC definition would qualify as a “public benefit”— such as public health programs (Title 36). Under normal rules of statutory construction, the absence of language is presumed to be intentional: had the proponents of Proposition 200 wanted to include these other titles, they could have done so. According to the Attorney General, therefore, any ambiguity in intent suggesting a broader application “cannot override the fact that the language and placement of [the amended language] indicate that it applies only to applicants for programs in Title 46.” As one official in the AG’s office described, writing the opinion was relatively straightforward, for the plain language construction was evident.

Supporting the AG’s narrow interpretation of the “public benefits” clause was the concern that an overbroad result would jeopardize the act’s viability in the eyes of the court because of concerns about vagueness and preemption. As the opinion noted, the “power to regulate immigration is unquestionably exclusively a federal power.” Perhaps, then, Attorney General Goddard—who, as noted before, opposed Proposition 200—could have focused on this preemption issue and argued that state officials were assuming the role of immigration officials. Such an argument would, however, ignore the critically important fact that Congress had carved out the states’ ability to regulate certain welfare benefits through passage of the PRWORA. Instead, the attorney general’s office appropriately focused on their primary role—defining a statute in a manner that honors its intent, while also ensuring its legality—and reached the most legally satisfying solution.

Finally, the opinion recognized that subsequent litigation would likely be necessary to identify the specific provisions within Title 46 that would be impacted once the Act was fully implemented. As such, the office exhibited fealty to the principle that an opinion should only address the specific question posed, while simultaneously demonstrating a willingness to provide legal guidance on the new provisions.

Section C: Reactions to the Attorney General’s Opinion

After issuing the legal opinion, the attorney general’s job was only momentarily complete. A state of uncertainty existed, however, as to potential reactions to the opinion: Would the agencies who had not requested an opinion abide by the decision? And would the public accept the AG’s authority regarding the scope of the Act? Indeed, the potential existed for inconsistent application of the law, both among agencies and across different regions. The answer to the first question—that of legitimacy in the eyes of state officials—quickly revealed support for the opinion. State agencies, as well as local officials such as county attorneys, subscribed to the guidance of what constituted a “public benefit” under the Act.

In the realm of public opinion, the debate remained contentious about the legitimacy of Attorney General Goddard’s opinion. A number of different constituencies emerged. First, many civil rights groups, most notably the Mexican American Legal Defense and Education Fund and the American Civil Liberties Union, vowed to challenge the opinion for impermissibly interfering with the federal government’s control over immigration. A second, less vocal constituency supported the AG’s opinion as appropriately recognizing the voter’s intent—one of PAN’s founders, for one, felt that the outcome manifested their intent. And finally, a group of conservative legislators and lobbyists argued that Attorney General Goddard’s opinion represented overreaching antithetical to the democratic process. Both supporters and opponents of Proposition 200 brought lawsuits challenging the AG’s determination about the scope of the public benefits.

Civil rights groups, who had previously filed lawsuits seeking to exclude Proposition 200 from the ballot, were initially successful in obtaining a temporary restraining order preventing implementation of the Act. Their argument was that because federal control over immigration preempted the Act, Goddard should have found it unconstitutional. It was evident that these advocacy groups were upset that the very same attorney general who had earlier opposed Proposition 200 now afforded the measure a legal interpretation that would permit its enshrinement as law. Once the case was heard on its merits, however, the district court lifted the temporary restraining order, agreeing with the AG that “by its express terms, Proposition 200 applies only to ‘state and local benefits’ that are not federally mandated.” Notably, on appeal, attorneys representing “Yes on 200” served as friends of the court, for, frustrated with the attorney general’s initial opinion, they doubted his capacity to fulfill his obligation of defending the state’s policy in court. The Ninth Circuit dismissed the appeal for lack of standing.

At the same time that the attorney general’s office was defending the Act against constitutional challenges, it also faced litigation from supporters of Proposition 200 who argued that the office had illegitimately frustrated voter intent. Describing the opinion as an “excess of executive discretion,” State Representative Russel Pearce, who had helped write Proposition 200, argued that the opinion was founded on “lesser legal authorities,” and that the Act should apply to all federally-defined public benefits. In his reply to these accusations of abuse of discretion, Goddard reminded the public that without his interpretation the Act would likely have been found unconstitutional on federalism grounds. According to Goddard: “[t]he fact that [the Act] is still alive and kicking and getting implemented is largely attributable to us having a clear, concise and early opinion on it.”

With the litigation and political vitriol surrounding Proposition 200, one might argue that attorneys general should decline an invitation to issue an opinion about a controversial legal question—indeed, their authority is discretionary. Yet, such a decision would be even more problematic: had the AG not provided much-needed guidance to the various state agencies responsible for state benefits, discrepancies would have emerged throughout the state. Rather, it is manifestly the AG’s responsibility to fulfill her obligation to her client by issuing an opinion in a situation like that faced in Arizona.

Part III: Limitations on the AG Opinion and Recommendations

In 1988, Arizona voters, faced with a ballot initiative similar in purpose to the above, narrowly approved Proposition 106 (“Amendment”), a constitutional amendment proclaiming English as the state’s official language and proscribing the use of Spanish or any other language on the ballot, in public schools, or in any government function. Although the measure was not the first such effort by a state, the Amendment was more sweeping than any of its predecessors. The strong political alliances on both sides of the issue portended the debates faced by Attorney General Goddard more than fifteen years later: the initiative was variously excoriated and lauded. Likewise, due to concerns about the proposition’s legality, the attorney general’s office was asked to issue an opinion regarding its application.

After receiving a request from the president of the state senate about numerous legal issues implicated by Proposition 106, then Arizona Attorney General Bob Corbin essentially sought to define whether the act was constitutional. Noting that it was the office’s duty to “give Proposition 106 a construction [] compatible with the United States Constitution and federal laws,” the AG offered an interpretation significantly narrowing the initiative’s scope, but ultimately upholding its legality. Among numerous legal concerns noted in the opinion were possible First Amendment free speech and 14th Amendment Equal Protection violations, as well as potential incompatibility with Title VII of the Civil Rights Act of 1964. Specifically, in order to avoid conflict with these legal obligations, the opinion narrowly construed the word “act” in the amendment’s language, defining the term to mean only “official act[s] of the government.” The opinion (“Corbin opinion”) distinguished this official conduct from the “day-to-day operation of government,” which, according to the AG, was not covered by the language. Ultimately, this construction not only harmonized the Amendment with constitutional requirements, it also squared an exceptional measure with existing legislation in other states. To some observers, therefore, the opinion seemed to mitigate the controversy by taking a politically appealing middle ground—upholding the act but circumscribing its application.

Subsequent litigation revealed, however, that the opinion remained controversial, both for its legal and policy conclusions. Immediately following the publication of Proposition 106, an employee from the Arizona Department of Administration challenged the amendment’s constitutionality as interpreted by the attorney general. A series of complex and protracted legal rulings, primarily focused on procedural issues, followed in both federal and state court. Ultimately, the Arizona Supreme Court evaluated the substantive merits of the challenge and reached two decisions: first, striking down the AG’s opinion, and second, finding the Amendment to be unconstitutional.

Notably, for the purposes of this paper, the Arizona Court roundly criticized the AG’s interpretation of the Amendment. Although the justices reviewed the opinion with “respectful consideration,” they nevertheless identified three crucial flaws in the AG’s reasoning. First, the court found the Amendment’s language fundamentally incompatible with the interpretation offered by the AG, echoing the Ninth Circuit’s finding that the opinion was “a remarkable job of plastic surgery.” Indeed, whereas the Goddard opinion appeared first and foremost to realize the plain meaning of Proposition 200, the Corbin opinion evinced an overarching desire to construe the language—even improbably—so as to comply with constitutional requirements. Second, the court ruled that the interpretation conflicted with the clear intent of the drafters. Although the Amendment’s proponents ultimately sided with the Corbin opinion, the court noted that available sources—including both the breadth of the language and the Legislative Council’s interpretation—indicated otherwise. Conversely, the external evidence supported, or at the very least did not explicitly contradict, Goddard’s reading of Proposition 200. And finally, the court decided that the Corbin opinion “unnecessarily inject[ed] elements of vagueness into the Amendment.” Hence, while the Goddard opinion provided requisite clarity to an otherwise vague initiative, Corbin achieved the opposite result by obscuring otherwise straightforward language.

The Proposition 106 case thus illustrates the role that courts play in policing a tension inherent to opinion writing—to wit, the office’s obligation to the state’s populace and to the legal principles of the constitution. Because Attorney General Corbin arguably realized the Amendment’s tenuous legal status—it was, after all, unprecedented in its scope—there was pressure to construe the text narrowly in order to survive the imminent constitutional challenges. Simultaneously, the attorney general sought to effectuate voter intent—to have simply declared the Amendment unconstitutional in an opinion would have appeared to be a purely political decision in conflict with the democratic process. In its analysis of the Corbin opinion, the Ninth Circuit recognized this tension as one common to the opinion writing process, particularly as applied to ballot initiatives. Hence, while the Arizona Supreme Court ultimately found the opinion to be “irreconcilable” with the Amendment’s language, the Corbin opinion does not demonstrate an obvious abuse of discretion regarding the opinion writing prerogative. Arguably, if, as in this case, there exists an honest—if perhaps improbable—legal argument for the state’s position, it would behoove the office of the attorney general to issue an opinion that seeks to apply a ballot initiative (or other legislation) in a manner consistent with the Constitution. The fact that the judiciary can ultimately review any decision made by the AG ensures that political pressures do not produce unchecked abuses of discretion, thereby preserving the separation of powers fundamental to our democracy.


Text Information

July 02, 2013

Addison Thompson

attorney general amicus

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