In 1994 former Attorney General Mike Moore laid out a plan to force tobacco companies to reimburse Mississippi the cost of treating people with smoking-related illnesses. When he did, then-Gov. Kirk Fordice made a competing dash for the courthouse.
Fordice’s mission was to ask the state Supreme Court to decree no lawsuit could be filed in Mississippi’s name without his signature as the state’s chief executive officer. A logical position, perhaps, but the court ruled quickly that it had no legal basis.
Section 173 of the 1890 Constitution says only, “There shall be an attorney general elected at the same time and in the same manner as the governor is elected, whose term of office shall be four years and whose compensation shall be fixed by law.” The rest of the section says nothing about the AG’s powers, just that the qualifications to serve are the same as for state court judges.
It’s clear enough, by statutes and otherwise, that an attorney general is the state’s chief legal officer in civil and criminal matters, but sometimes things become a bit murky.
Is the attorney general the state’s lawyer?
Is the attorney general the citizens’ lawyer?
Yes and yes.
What if a conflict arises between the state and its people? That does happen. The answer is, “it depends,” but the fact that the AG is autonomous is beyond dispute.
Earlier this month Attorney General Jim Hood announced (on Facebook) that he would not appeal a federal judge’s decision blocking House Bill 1523, the state’s newly minted religious freedom law. Reactions came from Gov. Phil Bryant and Lt. Gov. Tate Reeves. Both were, well, disingenuous.
Jim Hood’s discretion as AG is well settled. Further, Hood was a named defendant in the case. That clearly gives him the right to decide whether to object to the ruling, same as it would for any person.
Still, in his statement Bryant said he was “disappointed” Hood “abandoned his duty to defend the constitutionality of a duly enacted statute.” A statement from Reeves’ office added, “Sad day when Jim Hood no longer fight to protect our religious freedom.”
Bryant indicated Hood had a legal or perhaps moral or ethical duty to appeal. He doesn’t. Period. The “duty” of attorneys general has never been to a governor or Legislature. Witness the fact that when lawmakers felt they needed lawyers during this year’s session, they hired private attorneys.
So what motivated the reactions? Politics. Bryant and Reeves are Republicans. Hood is a Democrat in his fourth term and, from time to time, makes noises that sound like he’s interested in running for governor.
Indeed, his statement about not joining the appeal (which the governor and others are pursuing) contained candidate-ish language:
“All H.B. 1523 has done is tarnish Mississippi’s image while distracting us from the more pressing issues of decaying roads and bridges, underfunding of public education, the plight of the mentally ill and the need to solve our state’s financial mess,” Hood wrote. “To appeal H.B. 1523 and fight for an empty bill that dupes one segment of our population into believing it has merit while discriminating against another is just plain wrong. I don’t believe that’s the way to carry out Jesus’ primary directives to protect the least among us and to love thy neighbor.”
Bryant’s statement also had more than a twinge of politics, indicating that Democrats (Hood) are “unable to win elections, so they have joined secular progressives in their attempts to legislate through the courts.”
Any reading of the legislation at the center of the kerfuffle reveals that H.B. 1523 is hollow. It doesn’t add any rights the state has the power to protect and it doesn’t take any away. It was and is a recitation that the Legislature doesn’t think those who are uncomfortable dealing with others for reasons of their own faith should not have to do so.
Because H.B. 1523 is a law passed purely for show it’s really no surprise that it has become a foundation for additional harrumphing.
Oh, back to Mike Moore. For those who might not remember, his suit led the way for other states to follow and the 1997 national settlement was valued at $370 billion. Mississippi settled separately and got a better deal, at least $3.4 billion over 25 years. Annual payments continue. They are spent the second the dollars arrive, but the point is letting attorneys general make their own decisions about the law, as the Constitution ordains, has worked out fairly well in the past.
Charlie Mitchell is a Mississippi journalist. Write to him at firstname.lastname@example.org.
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