Arizona AG’s Reason for Not Appealing Marriage Ruling

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.

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What Are Your Thoughts?leave a comment
  • John Pieret

    Well, an attorney could be sanctioned under Rule 11 for filing a frivolous appeal solely to delay the proper outcome of a case. I think it is more interesting that Horne is, in effect, acknowledging that the arguments against SSM are all frivolous.

  • cottonnero

    In 2004, being anti-gay marriage was a good strategy for the Republicans. Now, the only people benefiting from being anti-gay marriage are the theocratic nutburgers asking for money. The national Republican party seems to think that gay marriage should start to go away.

  • Crimson Clupeidae

    I think the way he is citing Rule 11 is fine in this case. He isn’t worried about actually being sanctioned, but under the looser interpretation he uses (which is, as far as my limited googling can tell, valid too), it seems perfectly cromulent as an excuse to not waste taxpayer time and money.

  • busterggi

    The national Republican party is not Republican enough for the monster it created within itself.

  • eric

    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.

    Even if it’s disingenuous, it’s nice to see a public official stating that he’s going to follow the spirit of the rule rather than use the letter of it to extract maximum advandage for his partisan interests. Even if there’s zero chance of him getting punished for delaying implemntation, it’s still a good thing that he chooses not to delay implementation.

  • Kevin Kehres

    Yeah, let him save face. Frankly, this is fantastic news. He’s acknowledging that he can’t win.

  • Quantum Mechanic

    On the plus side, as an Arizona taxpayer, I’m ecstatic that he’s clued into the fact that pursuing this is a waste of taxpayer money. How often do we see Ed post about pig-headed idiots deciding to pursue hopeless (and also wrong, but that’s beside the case) cases on a matter of “principle” only to waste tax money that should be going elsewhere?

  • Chiroptera

    …it is unethical for a lawyer to file a pleading for purposes of delay rather than to achieve a result.

    Well, that is a pretty good reason, and I applaud this.

    Especially becasuse I was thinking he refused to file a case because he was afraid of getting gay cooties by being in the same room as them.

  • D. C. Sessions

    Of all the Republican AGs in the USA, Tom Horne is one of the last I could have imagined doing something either principled or sensible.

    Go figure.

  • http://www.facebook.com/den.wilson d.c.wilson

    What? A republican who doesn’t want to waste taxpayer money on a fruitless legal case that he knows he has zero chance of winning? He’ll have to turn in his teabags for this!

  • eric

    Of all the Republican AGs in the USA, Tom Horne is one of the last I could have imagined doing something either principled or sensible.

    Ah, but would you believe that he’s doing something that will better position him for a run for office in 2018 or 2020? He is probaby just thinking about the Democratic attack ads he can avoid in future years by not opposing it now.

  • http://dailydouq.wordpress.com dailydouq

    Other than taking this literally, that he’s trying to save taxpayers money, he probably just wants to stop wasting time on this. The diehard religinuts will never give up, undoubtedly with new laws and frivolous court actions in some states, but Arizona has lots more things to waste their time on. Plus is it really the baggers that are so anti-gay or are they just backstopping religinuts to keep coalition together to pull off bagger stunts.

  • Reginald Selkirk

    Where was Rule 11 when the big auto manufacturers were jerking around the guy who invented intermittent windshield wipers?

  • gshelley

    I don’t think he’s suggesting he might face sanctions. In pretty much every case where an AG or Governor has not appealed because they said they had no chance of winning, they have been criticised for not doing it anyway.

    This is a covenient excuse for those people?

  • http://www.clanfield.net janiceintoronto

    So he lost. Throw him a bone. It’s over.

  • chilidog99

    They can use the money they saved to sue the president for doing what they wanted him to do in the first place. . .

  • coffeehound

    On the plus side, as an Arizona taxpayer, I’m ecstatic that he’s clued into the fact that pursuing this is a waste of taxpayer money.

    This. But knowing Tom Horne, if he thought he could gain politically he wouldn’t think twice about wasting taxpayer money; I think he’s correctly reading the prevailing winds and realizing this could be used against him if he plans to run again in the future as a true fiscal conservative. He is nothing if not first about Tom Horne. It IS refreshing to see an admission that gay marriage is now a foregone conclusion that could bite them in the ass if they continue to posture for much longer.

  • coffeehound

    Sorry, forgot to attribute the comment to Quantum Mechanic @ 7……

  • badgersdaughter

    Crazy like a fox running for cover. He now has everyone talking about Rule 11 instead of the fact that he didn’t appeal the ruling.

  • Silent Service

    In the end he is still a politician making excuses for his actions.

  • cjcolucci

    Lawyers have an unfortunate tendency to throw in any argument they can make with a straight face. I doubt there is any deeper significance than that to his citation to Rule 11.