By Jena Ardell
By Jon Campbell
By Alan Scherstuhl
By Tessa Stuart
By Roy Edroso
By Jon Campbell
By Albert Samaha
By Zachary D. Roberts
ABRAMS DEFENDS SPITZER
The attorney general has the obligation to defend the state even if he is philosophically opposed to what is at stake in the litigation. When I was attorney general, I had to defend the state in the previous and similar attack on New York State's school funding formula. Indeed, if I were attorney general today, I would have felt as obligated as Attorney General Spitzer to defend the most recent lawsuit. Just as Attorney General Spitzer inherited the case from his predecessor, Republican Dennis Vacco, when he entered office, so, too, did I inherit the previous school funding case from my Republican predecessor, Louis Lefkowitz.
The Westway case was unique in several ways. My predecessor, Attorney General Lefkowitz, had retained outside counsel for the Westway case. I was a very visible and vigorous opponent to Westway when I was borough president of the Bronx. Just days prior to my taking office as attorney general, a special meeting of the Board of Estimate was called to vote on Westway, with my vote being registered against the project. Upon assuming office, I considered dismissing outside counsel to Westway and having the attorney general's office assume the defense of the case. I ultimately decided that if I suddenly took charge of the case, those with views supporting Westway would believe I would be undermining the adequate defense of the case. I ultimately decided to continue the outside counsel's representation defending Westway.
The attorney general's job is a complex and important post. Attorney General Spitzer has done a fantastic job as attorney general, and I believe he acted correctly in the matter at hand.
Former Attorney General of the State of New York
FROM THE ATTORNEY GENERAL'S OFFICE
In a recent series of articles, The Village Voice examined whether the attorney general is obligated to defend the state against legal challenges. This is an important question because the state faces tens of thousands of lawsuits annually.
The Voice cited several instances where previous attorneys general were said to have declined to represent the state in specific legal matters. The Voice erroneously concludes from this history that attorney generals can pick and choose the cases they want to argue on behalf of the state.
New York state law on the issue is very clear. It specifically states that the attorney general "shall prosecute and defend all actions and proceedings in which the state is interested."
For decades, attorneys general have considered such state counsel work to be a fundamental responsibility. Contrary to the Voice's article, no attorney general has declined to defend the state because he didn't like the state's position.
However, in very rare circumstances, previous attorneys general have recused themselves from certain cases. This was not for arbitrary reasons. Instead, it was the result of potential conflicts of interest.
For example, when then attorney general Robert Abrams sought outside counsel to defend the state in the Westway case in the late 1980s, there was a specific reason. Mr. Abrams had voted against the project when he was a member of the New York City Board of Estimate and when he was Bronx borough president. He determined that this specific, prior involvement in the matter created a conflict that might have impaired his ability to defend the state's interests.
The Voice cited other instances when Attorney General Abrams and Governor Mario Cuomo disagreed on public policy matters. Contrary to the Voice's characterizations, none of these situations involved Attorney General Abrams choosing not to represent the state or seeking recusal in a constitutional challenge.
For example, with regard to the issue of sports betting, Governor Cuomo may have differed with Attorney General Abrams on the particular issue, but the matter never came to litigation, and there was no recusal by the attorney general.
The Voice also referred to unspecified "toxic dump" cases where Attorney General Abrams was said to have recused himself. While there were internal disputes over legal strategy, there were no recusals or failures to represent the state.
Representing the state in legal matters is an absolutely critical role. Attorneys general must perform this function to the best of their ability without regard to personal views. If they fail to do so, it could jeopardize the effective defense of the state's interests. This is especially important when the state constitution, state laws, or state budget are being challenged.
In addition, it is important to note that if an attorney general actually refused a case, private lawyers would have to be hired to defend the state. This would lead to significant additional financial burdens on taxpayers.
Following the tradition of others who have held his office, Attorney General Spitzer is committed to representing the state in a professional manner. He will fulfill his duty to defend the state against all legal challenges.
Assistant to the Attorney General
Albany, New York
Wayne Barrett replies: Abrams is being disingenuous about his record as AG when his own spokesman was quoted in theTimes explaining his occasional refusals to represent the state as a sign of his independence. Saying that the AG has "an obligation to defend" the state is quite different from saying he "has to defend." When Abrams says he declined to defend on Westway because he had a public position of opposition, he implicitly suggests precisely the rationale Spitzer could have offered for refusing to defend an unconstitutional school formula. Abrams also specifically refused Governor Cuomo's request to prepare a pre-litigation letter about the sports-betting proposal, saying it was unconstitutional. In the toxic dump case, he refused to join the governor in a settlement agreement. As an attorney and an officer of an Internet firm investigated by Spitzer's office, Abrams and his firm have been doing substantial business with Spitzer's office. A Spitzer aide called theVoice to find out where Abrams's letter should be sent. Across the countryfrom Illinois to GeorgiaAGs are differing with governors on appeal decisions, even suing governors. There is no question that a Spitzer decision not to represent would've been unusual, but certainly possible, especially after the initial decision in State Supreme Court blasting the formula. Finally, Spitzer did not have to make all of the repugnant arguments he made in defense of the indefensible.