Last week, California legislators made the unprecedented move of retaining former US Attorney General Eric Holder to assist them in potential legal battles with the incoming Trump administration.
The move was a head-scratcher for at least two big reasons. First, it’s an indication that legislative leaders (namely Kevin de Leon and Anthony Rendon) don’t have a lot of confidence in incoming attorney general Xavier Becerra, who hasn’t even been confirmed yet, and second, a payment of $25,000+ monthly from the legislators’ operating budgets is a big deal.
It also might violate California law.
He’s requested a formal legal opinion from Senior Assistant Attorney General Susan Duncan Lee – and it’s a work of art. From the letter:
Article VII, Section 1 of the California Constitution provides, with limited exceptions, that “[T]he civil service includes every officer and employee of the state.” California courts “have interpreted the civil service mandate of article VII as forbidding private contracting for services that are of a kind that persons selected through civil service could perform ‘adequately’ and ‘competently.'” This applies whether the services performed are permanent or temporary.
In his Facebook post announcing his request, Kiley writes:
Notably, California courts have explained that one of the purposes of Article VII is to “ensur[e] that demonstrated fitness–rather than political considerations–spurs all appointments to public service.”
He closes his letter by asking Lee for a formal opinion on whether the state’s 1,592 attorneys can “adequately” and “competently” perform the task of developing “legal strategies regarding potential actions of the federal government that may of concern to the State of California.”
This puts Lee in the position of either giving an opinion that her 1,500-plus colleagues in the AG’s office can’t competently perform their duty of defending the state’s interests in federal court, making the Holder contract necessary, or admitting that they can and that the contract violates the Constitution.
Kevin Liao, a spokesman for Assembly Speaker Anthony Rendon, said lawmakers had conferred with legislative counsel before signing the contract and that:
[The] legislature needed legal advice from attorneys experienced in dealing with federal agencies and federal law – cases in which the state attorney general’s office does not specialize.
Hmm, is this the same legislative counsel who is currently being sued in a federal civil rights case, with an accusation of attempting to silence online speech critical of California lawmakers?
And, Mr. Liao, check again. The state attorney general’s office deals with federal agencies and federal law constantly. Check the dockets at the federal courthouses in California and at the Ninth Circuit and get back to us.