Wednesday, July 08, 2015

LEO Weakly confused on what I said about Jack Conway

Steve Shaw at LEO Weekly, in an article extolling the glories of our new Judicial Oligarchy and its redefinition of marriage, said:
Casey County Clerk Casey Davis presumably was high on GOP talking points when he falsely paralleled his neglect of duty with Attorney General Jack Conway’s refusal to defend Kentucky’s ban against a compelling judgment rescinding it as discriminatory. Martin Cothran of the Family Foundation, likwise, misrepresented Conway’s option not to pursue a forbidding appeal as a courtesy extended by Governor Steve Beshear. Conway is the Democratic nominee to succeed Beshear. [Emphasis mine]
First of all, I'm in favor of another amendment to the State Constitution prohibiting sentences like this. LEO staff apparently need some remedial instruction in clear writing.

If I interpret the statement correctly (and I'm willing to be corrected by someone with more expertise in the language it is written in), it seems to suggest that I portrayed Conway bailing on his oath of office as "a courtesy extended by Governor Steve Beshear."

This would have been rather hard for me to do, since I don't even know what "a courtesy extended by Governor Steve Beshear" would be. Does this mean I said that Beshear gave Conway permission not to do his job?

Where did I say that? And if I didn't say that, then how did I "misrepresent Conway's option?"

And in what was was the Obergefell decision "compelling"? Certainly not logically.

Let me restate what I did say: Attorney General Jack Conway violated his oath of office, his job description, not to mention reversing the position on which he ran for office, in refusing to defend Kentucky's Constitution, and has no standing whatsoever to criticize county clerks who are only abiding by their own oaths in refusing to issue same-sex marriage licenses.

What any courtesy extended by Beshear has to do with it, I don't know.


KyCobb said...


Conway did defend the Kentucky Constitution. He lost, and he had no obligation to file what he expected to be, and turned out to be, a futile appeal.

Matt K said...


There are two types of duties that State Officials possess. The first is a ministerial duty, and the second is a discretionary duty. The Attorney General in Kentucky (and all other states to the best of my knowledge) has the discretion to appeal a trial court's finding that a law is unconstitutional. There is no affirmative constitutional duty to appeal such a finding if the Attorney General, in his opinion, believes the appeal will fail or that the law is otherwise repugnant or unconstitutional. There is a duty to defend the law at the trial court level (before Judge Heyburn in this matter) which the Attorney General did in this case.

A ministerial duty is a duty in which there is no room for discretion. The most common example in law school is, ironically enough, filling out a form or putting a seal on a piece of paper. Issuing a marriage license is a ministerial duty.

What the LEO was attempting (albeit awkwardly) to say is that it is a false equivocation to compare a clerk's failure to perform a ministerial act with the Attorney General's lawful and discretionary choice not to appeal a finding that the marriage amendment violated the federal constitution.

As someone who has published logic textbooks, you are obviously very capable and very good at critical thinking. Therefore, I find it impossible to believe that you are unable to grasp the distinction between ministerial and discretionary acts. As someone who leans left on the gay marriage issue, I will freely admit that Kennedy's opinion was lacking in solid jurisprudence.

Can you not do me the same courtesy and admit that the comparison between the clerks refusing to issue same-sex marriage licenses and Conway's refusal to appeal is misleading at best and cynical at worst?

Anonymous said...

Matt K,

I read the LEO and couldn't understand. Thanks for explaining the issue so clearly.

j a higginbotham

Martin Cothran said...


I am certainly not in a position to tell you what it is possible or impossible for you to believe, but the distinction you point to is not one that has been pointed out to me. And for that reason, I appreciate you pointing it out. It is certainly relevant to the discussion.

I have no problem with the distinction per se, but it seems to me that it doesn't necessarily resolve the issue.

First, in regard to Conway's discretionary duty, you say that he would have the discretion whether to appeal the case. I don't deny that. But even you seem to think that that discretion is subject to some kind of criteria. You set them forth as whether he thinks "the appeal will fail or that the law is otherwise repugnant or unconstitutional." I would be curious to know where you get these criteria. Are they in the Kentucky Constitution? Is there some case law that establishes these criteria as judicial doctrine on these issues? I'm not accusing you of making them up, but I really don't know by what authority you assert them and would like to know.

But for argument's sake, let's assume them. On the first criterion--whether he thinks an appeal will fail--seems a pretty weak one to me. Whether a case is likely or unlikely to be won seems like a rather subjective criterion. In all cases there is a winner and a loser--and the percentage breakdown is obviously about 50/50. I imagine in a lot of those cases the parties have some idea of the probability of winning and losing. I am just wondering what happens if all the legal entities who calculate less than 50 percent odds refuse to pursue their cases.

In fact, doesn't that criterion amount to a self-fulfilling prophecy? The refusal to defend these laws may be based on a subjective judgment of probability of an appeal being successful, but such a refusal will most certainly affect the probability that such an appeal would be unsuccessful. If those ostensibly responsible for defending these laws decide not to defend them, doesn't that increase the probability that their side in the case will lose? And won't the spectacle of multiple instances of this further increase that probability? In fact, isn't this exactly what happened on the marriage issue? Whatever the chances an appeal would not be successful, the refusal to file it would increase the chances of its not being successful, and it seems to me the AG's job is to increase the chances where he has the power to do so. And he could have done this by filing an appeal.

Not that it is dispositive here, but I just wonder how this would work out in a military context. What happens when your chances of losing are high? You just give up? I can think of a number of battles that would have turned out very differently had this criterion been observed.

Conway certainly did say that Heyburn was right and that "these laws will not likely survive upon appeal" and that he would not "waste the resources of the Office of the Attorney General pursuing a case we are unlikely to win." But there are several things about this that make it a pretty weak excuse.

The first is the whole financial reason he gives. For one thing, what I want to know is how much more the state spent defending the law with outside counsel than it would have if he had done his job.

And secondly, I want to know how our showing up unexpectedly at several of the meetings between Conway's junior attorneys and Heyburn (Conway himself didn't bother to show up for any of the meetings) during the time he was purportedly actively defending the law--meetings in which his staff clearly had been directed to tred water affected Conway's decision--affect his decision. Even Judge Heyburn seemed to get impatient with them, and in one case clearly expected them to ask for a stay, and when they just sat there, looking at each other and shrugging their shoulders, Heyburn just did it himself--doing their job for them.

It was pretty pitiful.

Martin Cothran said...

Then there was Conway's brief in the original case, which a number of attorneys I talked to thought was simply badly done. Several thought they were intentionally bad. Even one attorney supportive of the plaintiff told a reporter that he thought the briefs signaled that Conway was opposed to his own case.

I'm trying to figure out how pretending to defend a law but actively undermining your own case can be justified under any circumstances.

I'm not saying that he couldn't do what he did: Obviously he could because he did. I'm saying he shouldn't have done it, partly because his reasons for not doing his discretionary duty were not convincing, and partly because he was serving in an office he campaigned for on a platform that included opposition to same-sex marriage. It wasn't like he didn't know what he was expected to defend going into his position.

In regard to his ministerial duty, I would again ask for the basis upon which you make this distinction and why it applies to county clerks and not attorneys general. Why, in other words, are filling out forms and putting seals on documents ministerial and not discretionary? It's not a part of their oath of office (like Jack's obligation to defend the Kentucky Constitution was), so what is it?

And, again, granting again your assumption (unestablished so far), is this ministerial duty to be discharged under all circumstances? To use an admittedly extreme example, if I am a clerk in Germany in the late 1930s and early 1940s, am I morally bound to sign the documents that are involved in sending Jews to the concentration camps? Again, I admit this is extreme, but it does establish that there is some point at which a person is relieved of his obligation to perform his ministerial duties, and the question therefore becomes on which side of the line violating your religious convictions falls (However far away they may may not be from sending people to concentration camps on the scale of moral terpitude).

You simply assume that it falls on one side of the line, but you do not say why.

I appreciate your admission about Kennedy's opinion and the intelligent discussion starter on this issue. And unless you have an objection, I'm going to post your comment and my response as a separate post on the blog tonight because I think your points worthy of more attention.

KyCobb said...


Filling out a marriage license is ministerial and not discretionary because a clerk doesn't have to make any judgment calls. Sending people to death camps is a crime against humanity, even if your only role is filling out the forms (in fact, I think that was pretty much the job description of a 93 year old German who worked at Auschwitz and put on trial recently). Providing marriage licenses to same sex couples doesn't harm anyone. If the clerk's religious beliefs prevent him from doing his job, then the obvious course of action for him to take would be to resign; a ministerial government official can't deny people equal protection of the law just because the official has a peculiar religious belief. The AG's discretion in deciding whether or not to appeal a case is absolute because it requires a legal judgment; since each case is unique it simply isn't possible to establish set criteria by which uniform determinations can be made on which cases should be appealed and which ones should not. You can't seriously believe that if only Conway had appealed this case to the Supreme Court Kennedy or one of the other four Justices in the majority would've changed their minds. All the arguments he could've made against same sex marriage were made.

Martin Cothran said...


Can a judge recuse himself from, say, a death penalty case if he is against the death penalty?

KyCobb said...

If a judge can't set aside his personal beliefs and do his job he has an obligation to recuse.

Anonymous said...

Suppose, say, the judge is not presiding over a death penalty case but is deciding whether the death penalty is legal or (state/Federal-)Constitutional.
Should he recuse if
1) he is for the death penalty?
2) he is agains the death penalty?
3) he can put aside his personal beliefs?
4) he can not put aside his personal beliefs?
5) he is personally in favor of whatever the current interpretation is?
6) he is personally not in favor of whatever the current interpretation is?

j a higginbotham

j a higginbotham

KyCobb said...

A judge normally doesn't recuse simply because he has an opinion on a subject. But if he holds that opinion so strongly he recognizes that he can't issue an opinion in conformity with the law, or in conformity with sound legal reasoning for reversal of precedent, then the judge should recuse. Judges usually recuse do to direct conflicts of interest. One interesting recent example was a reversal by the US Supreme Court of the WV Supreme Court when one of their justices provided the deciding vote for a company which had spent a vast amount of money to get him elected.

Anonymous said...

So Supreme Court justices who strongly believe in traditional marriage for religious/common sense reasons should not recuse? What about those who have officiated same-sex marriages? Is that where Martin is going?

j a higginbotham

KyCobb said...

The Supreme Court Justices who officiated same-sex marriages didn't recuse, nor is that a reason they should have.