A federal judge recently invalidated Arizona’s ban on same-sex marriage, like nearly every court that has considered such a law in the last year and a half, and state Attorney General Tom Horne decided not to appeal it, since the 9th Circuit Court of Appeals has already upheld similar rulings in other states. But his statement on the matter contains one other unusual justification:
“A number of Attorneys General have refused to defend laws defining marriage as between a man and a woman. I have not been among that group. I have fought to defend the laws as passed by the voters of Arizona, which I believe is the duty of the Attorney General.
Both the Federal District Court and the 9th Circuit Court of Appeals have ruled against us, and the United States Supreme Court has shown an unwillingness to accept review in the case of three other circuits in essentially identical circumstances.
The decision I make today has to be based on legal considerations rather than policy considerations. I believe the first duty of the Attorney General is to be a good lawyer.
Lawyers live under a rule called Rule 11, which provides that it is unethical for a lawyer to file a pleading for purposes of delay rather than to achieve a result.The probability of persuading the 9th circuit to reverse today’s decision is zero. The probability of the United States Supreme Court accepting review of the 9th circuit decision is also zero.
Therefore, the only purpose to be served by filing another appeal would be to waste the taxpayer’s money. That is not a good conservative principle.
I have decided not to appeal today’s decision, which would be an exercise in futility, and which would serve only the purpose of wasting taxpayers’ money.
I am issuing a letter today to the 15 county clerks of court with the directive that based on today’s decision by the Federal District Court, they can issue licenses for same sex marriages immediately.”
Rule 11 allows the court to sanction attorneys for filing frivolous cases. Horne’s statement concerning Rule 11 strikes me as rather disingenuous. The chances of a court sanctioning him and the state for appealing that ruling is virtually nil. Rule 11 sanctions are very rare and are reserved for the most substanceless cases. It’s certainly true that they have almost no chance of winning such an appeal and that is firm grounds for not bothering with an appeal, but to cite Rule 11 as a reason is pretty silly.