Reliance on AG Opinion

[Parry, John]

Twitchell is a strange case -- I worked on the appeal when I was in
practice, and the precedent we came up with for reliance on an AG opinion
was Barker, which wasn't much good since the parents relied on the church
publication which quoted but did not cite the AG opinion.  The opinion is
hard to like unless you know more about the underlying facts of the case.
In Bob Dylan's words, the trial was a pig circus, devoted primarily to
trashing Christian Science and arguing that anyone who adheres to that faith
is almost per se an unreasonable or reckless parent.  The brief detailed all
of this and then threw up a lot of legal hooks for the court.  Reliance was
the one they grabbed.  By the way, the case was dismissed on remand.

But on the underlying point, there seems to be a good argument that Bush
could rely on Ashcroft with respect to just about everything we can
reasonably expect him to consider doing.

John Parry

-----Original Message-----
From: Lynne Henderson [mailto:hendersl at IX.NETCOM.COM]
Sent: Monday, November 26, 2001 7:07 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Reliance on AG Opinion


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)
Lynne



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 Devanter, J.).

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)



-----Original Message-----
From: Bill Funk [ mailto:funk at LCLARK.EDU <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.

Bill Funk