In his letter to Reps. Eric LaFleur and William Daniel IV, he states:
As early as 1918, this office stated that "it is impossible for this office to give an opinion on [an issue] when [...] residence is questioned. There are so many facts surrounding the matter of residence that will bear upon the question that we cannot determine such cases." We have similarly stated that "opinions will not be rendered in cases where [...] the issue will be settled only by court action."
AG Foti, in his letter to the State Reps. Lafleur and Daniel, went on to state: "The Attorney General's written policy manual, which has historically guided the process by which this office renders legal opinions, provides that written opinions will be rendered to "the members of the Legislature on matters relating to state law." The manual requires that the request contain "a complete statement of the facts describing the situation out of which the legal issue arises. [...] The Attorney General will not seek out the facts or infer the questions" from the opinion request. The manual categorically states that "the Attorney General will not furnish opinions [...] on questions of fact;" nor will the Attorney General issue an opinion "on questions scheduled for determination by the courts, or where the prospect of litigation appears imminent."
In short, AG Foti is hiding behind the law. Louisiana law (La. R.S. 49:251(A)) provides that "The attorney general shall give his opinion in writing upon all questions of law" to elected and appointed state officers as required by statute.
Let's take a look at the key points, one by one:
1) The Attorney General's written policy manual mentioned above, goes to state: "the Attorney General will not furnish opinions [...] on questions of fact."
2) It further states that the Attorney General will NOT issue an opinion "on questions scheduled for determination by the courts, or where the prospect of litigation appears imminent."
3) However, Foti's letter seems to give some breathing room to Breaux ... to wit: Louisiana courts have consistently upheld this presumption in favor of
qualification, and have stated that the laws governing the conduct of elections
must be liberally interpreted so as to promote rather than defeat candidacy. Any doubt as to the qualifications of a candidate should be resolved in favor of permitting the candidate to run for public office ... A person claiming to be a citizen does not have the burden of proving his/her citizenship; rather, the burden to prove otherwise falls on a person challenging that citizenship.
As a matter of law, AG Foti is well within the bounds of Louisiana law. Historically, the AG's office has not issued written opinions on questions of fact, and this is exactly what former Senator Breaux is seeking.
As a political matter, Foti has hurt the Democrats chances of keeping the Governor's mansion this fall by punting on this question. Foti could have clarified what citizenship means in a way favorable to Breaux. He chose not to do that.
Sen. Breaux now has to decide whether to actively campaign - raise money, hire staff, talk to voters, etc. - knowing full well that he WILL be challenged by a Republican funded effort to knock him off the ballot after the qualifying period in September if he chooses to run.
Senator Breaux released a statement from his office: "I am in the process of reviewing the attorney general's statement and obviously want to review it carefully before commenting. I will have more to say about the statement and the governor's race in the coming days." |
