"The Civil Actions Bureau defends the county and its officeholders and employees in civil suits...."
This is how Cook County State's Attorney Anita Alvarez describes one of the duties of her office on her website.
A Cook County officeholder-- Clerk David Orr is a defendant in a civil lawsuit filed by same sex couples for refusing to grant them marriage licenses.
Anita Alvarez has now decided not to defend Orr.
But does she have a choice? Is she not ignoring one of the duties of her office, as she herself describes them? Does she have a choice of what Illinois laws she will or will not enforce or which officeholders she will defend?
All these questions arise after she declared that she would not defend the same-sex marriage ban law because she believes it is unconstitutional. Fine.
But don't the citizens and taxpayers of Cook County have the right of representation in the enforcement of laws passed in their name by the Legislature? The duty of defending Orr (and the county, a creation of the state) against the lawsuit now reportedly will fall to Illinois Attorney General Lisa Madigan. Will she also claim the power to decide which laws she will defend and which she will not defend?
Can suburban or downstate state's attorneys step in on behalf of Orr and Cook County citizens as defenders of the law?
Orr agrees with Alvarez that the law is unconstitutional. What are his options? Ask to be removed as a defendant? Then who is left to be sued?
Peter Breen, executive director and legal counsel of the Thomas More Society, said he plans to get involved. In a statement, he said:
We are disappointed in the Cook County State's Attorney's office for not defending this valid law, passed with broad bipartisan support in the General Assembly. While the plaintiff couples in this case are from hundreds of miles outside of Chicago, Lambda Legal and the ACLU sued only the Cook County Clerk and excluded from the case the local clerks [in the other counties] for these couples. Today's announcement by State's Attorney Alvarez makes it clear that this lawsuit was an ‘inside job’ from the beginning, a crass political move to force same sex marriage on all Illinoisans without providing the residents of the other 101 counties an opportunity to be heard. The Thomas More Society is preparing legal papers to defend the law and prevent this collusive end run around the will of the people of Illinois and their General Assembly.
Breen is right that it is an obvious end-around and political ploy. Otherwise, why didn't the plaintiffs file in their county of residence (where the state's attorney might well defend the law)?
I'm asking these questions as a layman with no legal training. But, it seems to me, Alvarez' action raised some fundamental questions.