Attorney General's dereliction of duty to the Idaho Legislature

Believe me, I did not want to write again about Raul Labrador’s failings, but this time his dereliction of duty is too glaring to ignore. The Attorney General is deliberately violating his clear statutory duty to provide written legal advice to legislators on proposed legislation. Idaho law requires the Attorney General to give a written opinion to “any senator or representative … when requested, upon any question of law relating to their respective offices.” Labrador flat refuses to follow that law, even though he swore under oath that he would “faithfully discharge the duties” of the AG’s office.

Labrador’s spokesman recently stated that the AG’s office has a “policy of not issuing written opinions to legislators” on proposed legislation that is likely to result in constitutional litigation. That is exactly the kind of legislation where a written opinion is indispensable. Why refuse to give an opinion that could discourage an unconstitutional bill and avert costly litigation? The answer is rather obvious — political self-preservation.

Lawrence Wasden was famous for giving honest, straight-forward legal opinions on legislation, even when he personally disagreed with the conclusion. He said it was his duty under the law to correctly call the balls and strikes, regardless of his personal beliefs. That is what you do if you believe in the rule of law. We hope that our private attorneys will not lead us astray by refusing to answer our questions on the legality of our actions. That would violate the legal profession’s ethical rules and could result in legal disaster for the client, particularly in the governmental arena.

Labrador used Wasden’s honesty against him in the 2022 election. He pointed to opinions on hot-button bills where Wasden had reluctantly concluded that legislation was likely unconstitutional, wrongfully claiming Wadsen was expressing his personal views against the legislation. That included LGBTQ discrimination bills, legislation to stifle free speech, some abortion bills and legislation to allow below-market rental for state lands. Since most of the present unconstitutional legislation comes from Labrador’s extremist friends, he certainly does not want to tell them their bills violate the U.S. or Idaho Constitutions, even when they clearly do. Nor does he want to put anything down in writing that could come back to bite him politically.

During a recent hearing on his funding request for two additional lawyers, legislators of both parties were not buying Labrador’s excuses for refusing to carry out his sworn duty to issue written opinions. One legislator suggested that there would be no need for additional lawyers if he complied with his opinion-writing duties. That is, he could avert costly, time-consuming litigation by providing written opinions on bills of questionable constitutionality. Labrador huffed, “the argument that my office would need fewer attorneys if we issued more opinions is absurd.” His contention is patently absurd. A short legal opinion can often prevent passage of a bill that the state would have to squander significant time and resources in defending.

Labrador has claimed that he can simply talk legislators out of pursuing unconstitutional bills. He told IPTV host Melissa Davlin last December that “sometimes you have to say no, that the law does not allow you to do that.” That strategy has not kept legislators from tossing numerous unconstitutional bills into the hopper this year. Those bills would likely have been put on the books and successfully challenged in court, had attorneys outside of government not stepped forward to point out clear constitutional flaws.

Former Secretary of State Ben Ysursa and I pointed out that House Bill 652, which would allow unchecked removal of signatures from initiative petitions, was clearly violative of the Idaho Constitution. Labrador failed to tell legislators that two bills which infringed on the Governor’s right to fill judicial vacancies — House Bill 713 and Senate Bill 1347 — had obvious constitutional flaws. Nor did Labrador warn legislators of the glaring constitutional problem in House Bill 521, which ties income tax cuts, school facility financing and several other subjects together in a single constitutionally-infirm bill.

There are many other bills with constitutional problems that could come back to haunt the state, including the numerous book-ban proposals and transgender bills. They could have been stopped or toned down by written, well-researched AG opinions. All Labrador has to do is to follow the law and do his duty. Otherwise, as in the military service, he ought to be brought to account for his dereliction of duty.

Jim Jones is a Vietnam combat veteran who served 8 years as Idaho Attorney General (1983-1991) and 12 years as a Justice on the Idaho Supreme Court (2005-2017). His columns are collected at JJCommonTater.com.