For Attorney General Jeff Landry, election to statewide office appears to have gone to his head. In legal matters, he's asserting his authority to make state policy, but alas — as courts have held in different ways since 1882 — he is confusing his role with that of Gov. John Bel Edwards.
The two, potential rivals in the 2019 governor's election, are back in court. The attorney general used his authority to review lawyers' contracts with the state to attempt to block an Edwards order banning anti-gay discrimination by the state and its contractors.
We believe Edwards is right on the merits of that issue, but it's also important that the process be understood, not least by Landry.
There is little that is entirely new under the sun. There has always been the potential for tension between an elected attorney general, who is the state's chief legal officer, and a governor. The latter's power and role is expansive, compared to most states in the Union.
The disputes between governors and AGs go back as far as the 19th century. One of Louisiana's most prominent lawyers, Frank Simoneaux, of Baton Rouge, wrote about a similar 1990 dispute — and he noted an 1882 precedent.
Generally, Simoneaux said, the attorney general should be independent in investigative matters or prosecuting crime, but that in civil and policy matters the AG should recognize that his role is as a lawyer.
Not, in other words, the decision-maker about the merits of a case.
The Louisiana Supreme Court "held in an 1882 case that the entry of the attorney general in a lawsuit without authority of the Legislature did not bind the state to the position of the attorney general in that case."
In more modern times, when Simoneaux wrote his article in The Advocate, the issue involved a college desegregation case, with protagonists Gov. Buddy Roemer and the late Attorney General Billy Guste.
But if the subjects of cases may change, there was a lot of wisdom that Landry should ponder in Simoneaux's conclusion: "(T)he average citizen probably assumes he votes for the governor as the official who will have the final say as to policies and objectives of the state within the confines of the concerned statutes and constitutional provisions. Likewise, he votes for the attorney general as a lawyer for the state, not as one who selects positions or policies for the state."
"If the governor were to disregard the plain meaning of the concerned statutes and constitutional provisions in favor of purely personal political policies and objectives, he will be held accountable to the people at election time," Simoneaux said. "However, this accountability to a great extent will be diffused and possibly lost altogether if the attorney general or any other statewide official may also determine what should be the policies of the state."
We think there are lessons for the new parties in this old situation.