Idaho Citizens are Not Children; No Family Lawyer Needed
By Art Macomber
On May 4, six former Idaho Attorneys General published a guest opinion arguing that the Attorney General position “is much like a family lawyer to the State.” Nothing could be further from the truth, and that metaphor minimizes the severe consequences of his inaction during the pandemic. Even if elitist, the opinion provides insight into why Idaho citizens were treated like children during the Covid pandemic.
The opinion states the role of Attorney General is to provide legal advice to government officials, so they have the information to act within the boundaries of the law. If true, how did the current Attorney General perform in this capacity when Brad Little and Secretary of State Denney violated section 4 of Article 1 of the U.S. Constitution by altering election rules in 2020 without legislative assistance? How did the Attorney General perform when Brad Little distributed federal Cares Act monies without enabling legislation, a violation of sections 14, 15, 21, and 22 of Article 3 of Idaho’s Constitution, and sections 5, 9, 10, 11, and 18 of Article 4 of that same document?
How has the incumbent Attorney General not cured the ongoing problem of his legal opinions becoming public when he advises the legislature? He has been in office for twenty years but fails to recognize a continuing separation of powers conflict when his office gives legal opinions to the legislature. A recent example is when Planned Parenthood included the Attorney General’s written legal opinion on Senate Bill 1309 as Exhibit 6 to its petition to the State Court. Now, our “family lawyer” incumbent must argue against his own opinion in court. This problem would be avoided if the legislature had its own in-house attorneys. The incumbent must work with the legislature to give it such counsel.
The family law metaphor is counterproductive in the current legal environment because it minimizes the serious nature of the recent crimes committed and likens Idahoans to children. Idaho recently experienced the unthinkable. Basic civil rights were criminalized, including the right to bodily autonomy, association, and worship. When the U.S. or State executive branches act outside their statutory and constitutional authority, what should the Attorney General do? The only answer is to take the case to court. Using the family law analogy proposed by our last six Attorneys General, this would be like the State suing the parents when the children’s rights are abused. Idaho citizens are rightly insulted to be seen as children.
Whether acting under a family law metaphor or some other metaphor, the incumbent Attorney General did not perform his duties as defender of the Article 1 rights of Idahoans. The Idaho Rules of Professional Conduct govern the ethical behavior of attorneys. Rule 1.6 states, “A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to revent the client from committing a crime . . .; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another . . .” (italics added).
Thus, when the Governor closed businesses and churches, the incumbent Attorney General had a duty to sue Brad Little for acting outside of his constitutional and statutory authority. Idaho does not need a “family lawyer” in the Attorney General’s office who minimizes, or disregards altogether, the rights of Idahoans and treats them like children. Idahoans need an independent Attorney General with a deep knowledge of the U.S. and Idaho Constitutions to fight the federal and state executive overreach and strengthen the Article 1 rights of Idaho citizens.
If Idahoans want an Attorney General who will treat them like adults, they will vote for Art Macomber on May 17. Otherwise, divorce proceedings may be in order.
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