Reliance on AG Opinion
hendersl at IX.NETCOM.COM
Mon Nov 26 16:07:04 PST 2001
I know that California has specifically said that the published Opinions
of the Attorney General are not law nor binding authority in this state. I
haven't had time to go look up the cite, otherwise I would've
responded. In the old classic *Hopkins*, preacher relied on a local
states' attorney fo rinterpretation of his signs and got nailed anyway
(First amendment would probably preclude this prosecution today . . .) 69
A. 2d 456 (Md 1950) But see Commonwealth v. Twiitchell, 416 Mass 114
(1993) (question of fact whether Christian Science parents could reasonably
rely on a Church interpretation of an AG opinion suggesting state might
not prosecute parents for failure to provide medical treatment , but
might act on behalf of children anyway)
At 06:48 PM 11/26/2001 -0400, you wrote:
>Prof. Funk asks for "a citation to ANY case in which an AG opinion telling
>a person his action is lawful has not been effective in having the
>conviction overturned on due process grounds." Well, as far as I know
>there haven't been very many reported cases involving reliance on AG
>opinions (Lynne Henderson: which cases did you have in mind?), so it's
>not surprising that there would be a dearth of such citations, but . . .
>cf. United States v. Dietrich, 126 F. 671, 675-76 (C.C.D. Neb. 1904) (Van
>Due process is a valid defense to criminal prosecution only where there is
>actual reliance upon an official's opinion, and where the reliance is
>"reasonable under the circumstances," PICCO, 411 U.S. at 675; see also,
>e.g., United States v. Smith, 940 F.2d 710, 714 (1st Cir. 1991) (whether
>"reasonableness" test is met depends on the "totality of the
>circumstances"); United States v. Conley, 859 F. Supp. 909, 931 (W.D. Pa.
>1994) (same); Commonwealth v. Twitchell, 617 N.E.2d 609, 619 (Mass. 1993)
>(same). Claims of reliance on official government assurances of legality
>often can present difficult questions with respect to whether such
>reliance would be reasonable. For example, would it be "reasonable" for a
>defendant to rely upon the legal opinion of the law enforcement officials
>of one jurisdiction if the defendant knows that officials of another
>jurisdiction with independent authority to enforce the statute in question
>disagree with that legal opinion? See, e.g., Goosby v. Os!
>ser, 409 U.S. 512, 516-17 (1973). Is it reasonable to rely upon the
>decision of one court of appeals where there is a circuit split on the
>issue in question? See, e.g., Moskal v. United States, 498 U.S. 103, 114
>n.6 (1990); United States v. Rodgers, 466 U.S. 475, 484 (1984). In PICCO,
>the Government argued, and the Court suggested, that it might be
>unreasonable to rely upon administrative regulations that are inconsistent
>with the Supreme Court's construction of the applicable statute. 411 U.S.
>at 675 (remanding the issue to trial court for consideration under the
>facts of that particular case). Similarly, it might be unreasonable in a
>particular case to rely upon even an AG opinion that is contrary to the
>"plain and unambiguous" terms of a statute, or the reasoning of which is
>"unsatisfactory," Dietrich, 126 F. at 676, or to rely upon an AG opinion
>that is contrary to substantial judicial precedent, or that takes one side
>on an issue that has precipitated a split in the !
>opinions of the courts.
>Marty Lederman (in my personal capacity, and with no intent to suggest
>anything at all respecting either the Military Tribunal questions in
>general, or the Martin/Volokh debate, in particular)
>From: Bill Funk [mailto:funk at LCLARK.EDU]
>Sent: Monday, November 26, 2001 4:24 PM
>To: CONLAWPROF at listserv.ucla.edu
>Subject: Re: Impeachment for Supposed War Crimes
>Lynne Henderson wrote:
> > reliance on AG opinions hasn't helped most criminal defendants.
>I would like a citation to ANY case in which an AG opinion telling a
>person his action is lawful has not been effective in having the
>conviction overturned on due process grounds.
> > The whole issue of reasonable reliance on Justice Department
> > interpretations of the Bolland Amendment came up in the Iran-Contra
> > hearings, although no dispositive resolution was reached by Congress
> > as I recall.
>Violation of the Boland Amendment (the restriction on funding of
>Contras) was not a criminal offense. No one was ever prosecuted for
>violating the Boland Amendment.
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