Commentary by Arthur Macomber of Coeur d’Alene
In his June 5, 2024, opinion editorial, former Attorney General and State Supreme Court Justice Jim Jones opines on the alleged failure of Attorney General Raul Labrador in adhering to the Idaho Rules of Professional Conduct for attorneys related to client representation. Mr. Jones misreads Idaho Code in determining who and what are the clients of the Attorney General and the advice to come from that office, and thus Mr. Jones lends more confusion to the “tangled mess of litigation” regarding the disposition of the former ITD headquarters.
Mr. Jones inappropriately asserts a “single client-single attorney” set of rules on the Attorney General’s office. Mr. Jones does not account for the separation of powers nightmare that continues to tangle Idaho government regardless of who occupies the Attorney General’s office. The Attorney General’s job is made more difficult by misunderstood statutes where his or her duty is “To perform all legal services for the state and to represent the state and all departments, agencies, offices, officers, boards, commissions, institutions and other state entities in all courts . . .” Further, the law states the Attorney General must “advise all departments, agencies, offices, . . . and other state entities in all matters involving questions of law.” To twist matters further, the Attorney General is to “give an opinion in writing, without fee, to the legislature or either house thereof, or any senator or representative, and to [other State officers], when requested, upon any question of law relating to their respective offices.”
Initially, the definition of the word “State” is up for grabs. Note the statute separates “all legal services for the state” from the duty to “represent the state” and “all [executive] departments” and “other state entities.” We understand the design of our compound republic is a two-tier structure of the federal and the state governments. Madison stated in Federalist 51 that “the power surrendered by the people is first divided between two distinct governments [State and federal], and then the portion allotted to each subdivided among distinct and separate departments [legislative, executive, and judicial]. Hence a double security arises to the rights of the people.” When a State abridges the rights of the people, then the federal power is designed to intervene, and vice versa. Therefore, the word “state” in Idaho statutes, notably uncapitalized, must include the people of Idaho, even though the Attorney General usually does not represent individuals. Mr. Jones appears to insert the word “government” after the word “state,” so that the Attorney General only represents the Idaho State government with no accounting for the interests and rights of the people of Idaho.
However, and of some help, the statutes restrict the Attorney General’s advice to all government departments and other State entities to only “all matters involving questions of law,” which means existing law, and not inherently political matters related to the formation of Idaho law prior to enactment of new or amended statutes. Thus, the Attorney General should not be advising on unenacted law. Also, an Attorney General opinion for the legislature and others is limited to “any question of law relating to their respective offices,” and not to questions about the formation of Idaho law prior to enactment of new or amended statutes, even if that unenacted law relates to “their respective [legislative] offices.”
The current separation of powers dilemmas in Idaho can be addressed immediately by new and separate House and Senate legal offices, where a legislator can gain a true attorney-client privilege protected opinion on proposed laws and other matters related to the legislative function, and where the Attorney General’s advice is limited to opinion on existing law. That type of clarity would avoid many of the present issues raised by Mr. Jones, regardless of the current occupier of the Attorney General’s office. I will submit a statute to create those offices with further justification for it at a later date.
Art Macomber is a citizen who has been politically active for decades. One of his careers is as an attorney. Another career is telling it the way he sees it, come what may.
